Guardian Industries

National Labor Relations Board - Board Decisions

Jun 3, 1975

218 N.L.R.B. 176 (N.L.R.B. 1975)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glass Guard Industries, Inc., a Division of Guardian
Industries and United Glass and Ceramic Workers
of North America, AFL-CIO-CLC and Truck
Drivers Local # 170, a/w the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Cases 1-CA-9579 and 1-
CA-9756
June 3, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On January 31, 1975, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent and counsel
for General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
1. Our sole disagreement with the Administrative
Law Judge relates to his finding that employees
Schofield and Birch were discriminatorily selected
for layoff in violation of Section 8(a)(1) and (3) of the
Act. Respondent excepted to this fmding, contend-
ing, in part, that there is no probative evidence to
establish employer knowledge of Birch's and Scho-
field's union activity.. We find merit in this conten-
tion.
It is well established that the burden of proof is on
General Counsel to establish that a layoff or
discharge was discriminatorily motivated in order for
there to be a violation of Section 8(a)(3). In order to
meet this burden, General Counsel must adduce
evidence that there was knowledge on the part of the
employer that the alleged discriminatees were en-
gaged in union activities. In the instant case, there
was no such evidence presented. As the Administra-
tive Law Judge pointed out in his Decision "there is
no direct testimony with regard to Respondent's
knowledge of the union activities of Schofield and
Birch ." There is likewise a dearth 'of any circumstan-
tial evidence that would tend to establish that
Respondent was, 4ware that Birch and Schofield were
engaged in any union activities, or were even in favor
of the Union. Birch testified that he passed out
several union cards, but, with one exception, this was
218 NLRB No. 27
done in his home to several fellow employees who
were his neighbors. In the one instance in which he
handed out a card at the plant, there is no indication
that any supervisory personnel were present. 'Both
employees did sign union authorization cards, but
this was done away from the plant at a time when no
management representatives were present. By their
own testimony, neither employee discussed the
Union with any supervisory personnel. Although
Schofield and Birch were present at a party the week
prior to the layoffs at which another employee and a
supervisor engaged in a somewhat heated discussion
about the Union, Schofield testified that he did not
participate in that discussion in any way, and Birch
testified that he declined to comment when the issue
of the Union was raised. Even acknowledging that
there were rumors in the plant about the Union, as
was found by the Administrative Law Judge, this is
not sufficient to establish the essential critical finding
that the Respondent was aware of their union
activities. Accordingly, we fmd, contrary to the
Administrative Law Judge, that counsel for General
Counsel failed to prove by a preponderance of the
evidence that Respondent had knowledge of Scho-
field's and Birch's union activities. We therefore shall
dismiss that portion of the complaint which alleges
that Respondent discriminatorily laid off employees
Schofield and Birch and amend the Administrative
Law Judge's recommended Order and notice accord-
ingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Glass Guard Industries, Inc., a Division of Guardian
Industries, Webster, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified.
1. Delete "Patrick Birch and Gerald Schofield"
from paragraph 2(a).
2. Sujstitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLR$ 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
GLASS GUARD INDUSTRIES, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question you concern-
ing your union sympathies and activities or the
union sympathies and activities of your fellow
employees.
WE WILL NOT threaten you with discharge or
with discriminatory layoff for engaging in protect-
ed concerted or union activity.
WE WILL NOT refuse to permit Local 170 of the
Teamsters Union to come in to our plant in the
event that you choose to have that Union as your
bargaining representative.
WE WILL NOT discourage membership in or
activities on behalf of United Glass and Ceramic
Workers of North America, AFL-CIO-CLC,
and/or Truck Drivers Local # 170, a/w the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization of your-choosing, by
discriminating against you with regard to your
hire or tenure of employment or any term or
condition of employment. Moreover, WE WILL
NOT issue any written or verbal warnings to you
for that purpose.
WE WILL offer to Freeman Davis and Alan
Beique immediate and full reinstatement to their
former jobs or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WILL make them whole for any
losses they may have suffered as a result of our
discrimination against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to form, join, or assist or to be
represented by the above-named Unions, either
one of them or any other labor organizations, to
bargain collectively with representatives of your
own choosing or to engage in other protected
concerted activities for the purpose of collective
bargaining or any other mutual aid or protection
or refrain from any or all such activity except to
the extentthat such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized under Section 8(a)(3) of the National
Labor Relations Act, which means that any union
you choose may with your employer, if you so
desire, enter into a union-shop agreement.
177
GLASS GUARD
INDUSTRIES, INC., A
DIVISION OF GUARDIAN
INDUSTRIES
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
proceeding was heard before me on August 19-23 and on
October 4, 1974, at Worcester, Massachusetts, on the
consolidated amended complaint of the General Counsel,
issued on his behalf by the Regional Director of Region 1
on June 28, 1974, which complaint was based on a charge
filed on January 31, 1974, by the Glass & Ceramic Workers
and a charge filed by the Teamsters on April 10, 1974, and
an amended charge filed on June 24, 1974. The complaint
alleges, in substance, that the Respondent interrogated and
threatened its employees with regard to their union or
protected concerted activities, discharged certain employ-
ees for the same reason, selected certain employees for
layoff for like reason, and refused to reinstate other
employees after the layoff for the aforementioned reasons.
The Respondent's timely served answer, while admitting
certain allegations of the complaint, denies the commission
of any unfair labor practices. At the close of the hearing,
the parties waived oral argument. Thereafter, counsel for
the General Counsel and counsel for the Respondent
submitted briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
given to the contentions advanced by the parties in their
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Massachusetts corporation, with its
principal office and place of business in the city of
Webster, Massachusetts, is engaged in the manufacture,
sale, and distribution of insulating glass and related
products. The Respondent annually receives at its afore-
mentioned plant goods of a value in excess of $50,000
directly from points outside' the Commonwealth of
Massachusetts and ,also annually ships from the said plant
goods of a value in excess of $50,000 directly to points
outside the Commonwealth of Massachusetts.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that the Glass & Ceramic
Workers and the Teamsters, the Charging Unions, are each
labor organizations within the meaning of Section 2(5) of
the Act.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
As noted above, the Respondent is engaged in the
manufacture and distribution of insulating glass. The two
departments with which this proceeding is involved are the
traffic department which distributes the Respondent's
products via truck, either of the over-the-road trailer
variety, or via shorter haul trucks known as "A-frames."
The other department with which this case is involved is
the production department, particularly two production
lines in which glass is-tempered by furnace heating process
and-which production lines are known as the 100 line and
the 200 line. -
At the tunes involved herein the Respondent's employees
in neither of these departments were represented by any
unions. The record does not show that any employees of
the Respondent have ever been represented for purposes of
collective bargaining. However, in an earlier case 1 the
Respondent was found to have violated Section 8(a)(3) and
(1) of the Act in discharging and otherwise violating
employees'. Section 7 rights because the,employees engaged
in union activities on behalf of a teamster local which was
then endeavoring to organize the Respondent's traffic
department employees.
Evidently, some time about the first part of January
1974, -the employees in the production department, and
perhaps in other departments, were becoming somewhat
distressed at what they considered poor working conditions
in the plant and were talking among themselves about
representation by a labor organization. In carrying out this
desire for representation, some of the employees met with
the president of the local Glass & Ceramic Workers Union.
Within 4 or 5 days thereafter, these employees along with
two others who also, it is alleged, were engaged in activities
on behalf of the Glass & Ceramic Workers were discharged
by the Respondent. Also during this same period of time,
according to the allegations of the complaint, and the
testimony of various witnesses presented by the General
Counsel, various supervisors in the Respondent's plant
interrogated and threatened these employees and inter-
fered with their Section 7 rights.
Shortly thereafter, the Respondent evidently came upon
hard times and it became economically necessary to lay off
a number of employees. However, dung this same period
of time a number of the traffic department employees were
engaged in activities on behalf of Local 170 of the
Teamsters seeking to organize the Respondent's traffic
department employees.
On March 22, 1974, upon a claimed very short notice
from the upper level of the Respondent's officialdom
approximately one-third of the Respondent's some 300
employees were laid off, among such employees being at
least some of the members of the traffic department who
were allegedly engaged in union activity and which the
General Counsel and the Charging Teamster Union
contend were included and selected for the layoff because
of their union organizing activities.
i 212 NLRB 285 (1974).
Sometime thereafter, although some of these employees
were notified to return to work, the General Counsel
contends, and the complaint alleges, that such recall was in
violation of the Act and constituted refusals to reinstate the
employees to their former or substantially equivalent
positions because of their alleged union activities.
The Respondent defends on two major grounds. In the
first place, the Respondent contends that it had no specific
knowledge of the union activities of any of the employees
and in the second place, the employees in the production
department who were discharged on or around January 9,
1974, were discharged for cause and not for union
activities. Additionally, Respondent contends that the
selections for layoff on March 22 of approximately one-
third of the employee complement were made hurriedly
because of immediate and pressing economic necessity and
that such layoffs were made without consideration being
given to any union activity on the part of any employee
who was laid off.
Basically, therefore, the issues are whether any of the
discharges or layoffs were the result of the Respondent's
desire to rid itself of union adherents or whether such
actions on the part of the Respondent were for cause or for
good and valid economic reasons and, of course, whether
any of the Respondent's supervisors or officials threatened
employees because of their union activities or interrogated
them in, an attempt to unlawfully seek information with
regard to such activities.
As in most cases of this type, the basic issues are issues of
credibility, the General Counsel claiming complete honesty
on the part of his witnesses and the Respondent claiming
the opposite. There is also an issue as to the supervisory
status of one of the alleged Respondent participants in the
alleged violations of the employees' Section 7 rights.
B. The Events of January 8, 9, and 10
On January 4, 1974, four employees who worked at the
prefumace area of the 100 line met with the president of
the local Glass & Ceramic Workers, Jesse Doherty. This
meeting took place outside the plant on the road bordering
the plant at noon of that day. The employees who so met
with Doherty were Robert Skaza, Ralph Santiago, Bruce
Skerry, and Rafael Rojas. Later that day, all four
employees met with Doherty away from the plant and
signed union designation cards. When these employees
returned to the plant they began to talk to fellow
employees about joining the Glass Workers and succeeded
in obtaining approximately 20 names of individuals
working on the 100 line.
According to Skaza, on January 5, as they were working
and discussing the Union and, taking names of individuals
who expressed desire to join the Glass Workers, Gerard
Touchette, a quality control man, concededly not a
supervisor or agent, came by and asked what they were
doing. Skaza replied that they were trying to get a union in.
With that Touchette said that they had better watch their
step, that people who tried to get unions in before were
GLASS GUARD INDUSTRIES, INC.
discharged. Touchette also stated that the Company was
strictly against unions.2
While this discussion of union organization was going on
between employees within the plant, at some time prior to
January 8, 1974, Santiago discussed the union organiza-
tional activity and the possibility of bringing a union into
the plant with George Desaulnier, head seameron the 200
line. Desaulnier was enthusiastic and,, as a result, helped
distribute union cards to various employees and sought to
induce them to sign such cards. Also, during this same
period of time, after Desaulnier had been working at union
organizational matters he engaged in conversation with
quality control man Touchette. In substance, he told
Touchette that the work that was being done in the plant
was dangerous and that a number of employees, including
Desaulnier himself, had been injured and that these
matters would not have occurred had there been a union in
the plant. Touchette told Desaulnier that matters did not
look too good for the Company, that many of the people
were dissatisfied and that a foreman, Neil Allman, had
been demoted. At that point Desaulnier also stated that the
wages were low for the type of work they were doing and
that there was general discontent among the employees.3
According to the testimony of Skaza, on January 8,
during the workday, just before the noontime break, he
engaged in a conversation with Foreman Dumaine by the
furnace on the 100 line. According to Skaza, Dumaine
offered Skaza a promotion to the position of relief man.
However, Skaza refused it, according to Skaza, because it
did not pay enough for the work that was involved and also
because Skaza learned that another employee was to be
fired in order for Skaza to have the job offered him. Skaza
further testified that he told Dumaine that he did not want
the job but he would take it if he was paid more money.
Then, according to Skaza, Skaza added "If we ever get a
union and got paid the wages that we would get, he would
take the job." Dumaine then answered "You'll never see a
union in here."
According to Dumaine, he might have had a conversa-
tion with Skaza at the time mentioned by Skaza in the
latter's testimony and may have, at that time, offered Skaza
a promotion. However, Dumaine emphatically denied that
there was any mention of unionism or union in the
conversation and denied emphatically that he ever told
Skaza that there would never be a union in the plant.
With regard to the foregoing conflicting testimony, I was
very much impressed with the manner in which Dumaine
testified at the hearing and was convinced for the most part
that Dumaine was ernestly seeking to tell the facts exactly
as he remembered them. Although I have otherwise
credited Skaza's testimony where it was mainly uncontro-
verted, in the present instance I accept lDumaine's denial of
the mention of union or unionism during that conversa-
tion.4 Additional reasons why I do not credit Skaza
2 'These remarks of Touchette are not considered violative inasmuch as
Touchette was neither an agent nor a supervisor of the Respondent. They
are included only for the purposes of showing the atmosphere in the plant at
the time of, the events herein. The foregoing facts as recited are taken from
the credited portions of the testimony of Skaza. Touchette's denial of the
incident is not credited.
3 From credited portions of the testimony of Pesauhner. Santiago did
not testify. Touchette's version, in fact, supports Desaulmer's. It should be
179
completely in all respects are set forth hereinafter with
regard to the events surrounding the discharge of Skaza
and other 100 line employees that occurred the following
day, January 9.
Moreover, I would assume that, if Skaza had actually
told Dumaine that conditions would be different if a union
came in, he would also have told Dumaine that one of the
reasons he refused to accept the offered promotion was
that another employee would have to be fired in order to
make room for Skaza in the better position offered.
However, Skaza, did not testify that he informed Dumaine
of this alleged reason, instead he testified that he told
Dumaine he would accept the promotion if it paid more
money.
The employees on the 100 line and the 200 line normally
report to work at or about 7 a.m. On January 9, the day
following the foregoing alleged conversation between
Skaza and Dumaine, when Skaza arrived at work and
when the other employees arrived at work it was snowing.
According to Skaza, about 8 o'clock he noticed that the
storm was growing worse and that the snow was becoming
heavier and he, therefore, desired to leave for home
because he had bald tires on his automobile. He therefore
went to Dumaine and asked the latter if he could leave
early for the foregoing reason. There is some conflict as to
what Dumaine answered, Skaza claiming that Dumaine
gave him permission to do so and Dumaine testifying that
he told Skaza to wait and see what would develop. The
other employees, namely Santiago, Rojas, and Skerry also
approached Dumaine and asked for leave to return home
at an early hour for like reason inasmuch as they were
passengers in Skaza's automobile. At any rate, regardless
of whether Dumaine first gave Skaza permission to leave
earlier, such permission was shortly thereafter withdrawn,
if indeed it was given, and the employees were told that
they could not leave. However, because they were insistent,
Dumaine told them that they just could not leave, that
such leave would be unexcused. He further told them that
he needed them in order to keep,the supply of glass going
to the furnace for tempering inasmuch as they were the
employees who were involved with preparing the glass in
the prefurnace area. Dumaine also said that Skaza should
not have waited until January in order to have snow treads
put on his car and that, therefore, there was no excuse to
leave work.
Santiago then spoke up and said that they were going to
leave at noon as they all had to get snow treads and that he
did not have any either. Rojas also affirmed that he had to
get snow treads and had to be somewhere else later on that
day. Dumaine explained to each of them that they had to
work 5 days a week, 8 hours a day, and that leave was
impossible because they would probably have to shut
down the furnace because there would not be enough glass
to supply the furnace. He further told them that what he
noted, as pointed out above, however, that Touchette was neither a
supervisor nor an agent of the Respondent at least as shown by any of the
evidence offered at the hearing.
A To the extent that I credit Skaza or any other witness in part, I do so
upon the evidentiary rule that it is not uncommon "to believe some and not
all of a witness's testimony." N.L.R B. v. Universal Camera Corp, 179 F.2d
749,754 (C.A. 2).
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did for them he would have to do for all of the people
under his foremanship and that, therefore, he could not
afford to allow them to go without closing down pro-
duction.
After these refusals, Skaza went to Shift Superintendent
Raymond Laine, also known as "Butch," and asked
permission to leave because of the snow and the bald tires
on Skaza's car. Laine told Skaza to wait, that he would talk
to the truckdrivers coming in and ask what the condition of
the roads were and would then inform Skaza as to whether
he would be given permission to leave. However, approxi-
mately one-half hour later, Laine told Skaza that the latter
and his fellow employees could not leave because the roads
were not in bad condition.
In any event, when the four employees, Skaza, Santiago,
Rojas, and Skerry went to lunch at approximately noon
they did not return for the afternoon work session. It
should be noted that they were all forwarned that if they
did not return they would be discharged or at least
disciplined.
The following morning, January 10, when the four
employees returned to work at their normal reporting time
they found that their timecards were not in the rack. When,
on January 10, Dumaine saw Skerry, Rojas, Santiago, and
Skaza enter he walked toward them and Skeny asked if
they were fired. Dumaine answered in the affirmative and
handed each his final check.5
Dumaine testified that on January 9, although there was
always some difficulty with the furnace, it was not in such
unworkable condition that it had to be shut down for any
length of time. Accordingly, there was no large backlog of
prefurnace glass that could readily be used to take up the
slack which would have been the result of the unexcused
leaving of the four above-named individuals. Dumaine
further testified that because these four individuals left
without permission and with only a half day's work
completed, he was forced to either call in other individuals
early who were due on the next shift, or obtain people from
other departments to perform the necessary work left
undone because of the unexpected leave taking.
Neither Santiago nor Skerry testified. Rojas testified
that, on the following Thursday or Friday after the
discharge on January 10, he returned to Respondent's
facility and spoke to Dumaine, telling the latter that he
needed the job. Dumaine answered that he would let Rojas
know. Rojas then went home and on the following
Monday was called by Dumaine who told him he could
have his job back if he did not talk about the Union. Rojas
further testified that during that telephone conversation
Dumaine also told Rojas, "You are not going to have your
friends back-Santiago, Skaza and Skerry-they're talking
about the Union."
Dumaine 's version of the offer to Rojas to return the
latter to employment differs from the foregoing. According
to Dumaine , Rojas came to him several days after the
discharge virtually in tears and admitted he was wrong and
sorry; that he was not part of the group and had his own
reasons for leaving. After Rojas promised he would never
do anything like that again, Dumaine went to Parkinson
who told Dumaine that if the latter wanted to rehire Rojas
he could do so. Thereupon, he immediately called Rojas
and told him to report to work the following Monday, but
Rojas failed to report at all. Dumaine further denied that
he told Rojas that he would not rehire Skaza, Santiago, and
Skerry because they talked about the Union.
I credit Dumame's version of the incidents of January 9
and 10 and the offer to rehire Rojas. Rojas denied that he
ever received a notice of decision of the Massachusetts
Division of Employment Security, yet the said decision was
introduced into evidence and on its surface shows that it
was addressed to Rojas at his admitted address. Also, when
asked on cross-examination whether he ever told anyone
that he left Respondent's premises on January 9 in his own
car and not in Skaza's car, Rojas denied that he had or had
returned to Respondent's plant that same afternoon.
However, the above-mentioned Division of Employment
Security decision states:
The claimant asserts that, although some of his co-
workers took the afternoon off because of the weather,
although all had been warned about such action, he
had planned to work that afternoon. During his twenty-
mmute lunch break, however, he had driven his car to a
garage to have snow tires put on and he was delayed.
He states that he returned to the plant at 1:00 p.m. but
when he saw that his time card was not in the rack he
left without speaking to anyone and did not return until
a few hours later to talk, to the foreman at the end of
the shift.
Parkinson, who attended the hearing from which the
foregoing decision emerged, testified that his recollection
of Rojas' testimony at the hearing conformed to the facts
set forth in the decision.
On the basis of the foregoing I cannot credit any of
Rojas' testimony. Moreover, because Skaza testified that
Rojas left the plant on January 9 in Skaza's auto it is
apparent that either one or both Skaza and Rojas was less
than truthful about that incident. Accordingly, I do not
credit either of them regarding the events of January 9 or
10 except that they left without permission and after being
warned they would be disciplined if they left without
permission. Nor do I credit Rojas' testimony of his later
conversations with Dumaine regarding his possible rehire
and Dumaine's alleged statement of discriminatory refus-
als to rehire the other three who left early on January 9.
At the same time that difficulties were being experienced
on the 100 line, there were also problems with the
employees working on the 200 line. As heretofore related,
George Desaulmer, head seamer on the 200 line, heard
about the Glass Workers Union from Ralph Santiago.
Thereafter, Desaulmer, between the time of this informa-
tion and January 9, as noted above, passed out union
cards, talked about the Union to his fellow employees on
5 From credited portions of the testimony of Dumame and admissions of
Skaza. It should be noted that there was other testimony with regard to
conversations between Dumaine and Skaza on the morning of January 9.
However, there is no question that when the employees left at noon and did
not return they left without permission. This was admitted by Skaza. It
should also be noted that at the end of the General Counsel 's case he moved
that Skerry's name be removed from the complaint and that the allegations
of discriminatory discharge with regard to Skerry be dropped. There was no
explanation for this, but the motion was granted.
GLASS GUARD INDUSTRIES, INC. 181
the line and also had a conversation with Gerard
Touchette with regard to the union matter as related
above.
The difficulties on the 200 line began on the evening of
January 8 when the employees on that line were informed
that an hourly wage rate raise which had been given to
them shortly before that date was revoked. This announce-
merit was made at quitting time on January 8 and, as a
result, when the employees of the 200 line reported at their
work stations on January 9, they discussed the matter and
were collectively disgruntled because they could not
understand why their raise had been revoked. Most of the
employees in the seaming area of the 200 line were women.
After Desaulnier had punched in that morning at or
about 7 a.m., he was approached by reamer Betty Burns
who stated that the seamers on the 200 line with whom
Desaulnier worked had received a raise and then showed
Desaulnier a paper in which the Respondent stated that the
raise had been a mistake and that they would have to
withdraw the extra amount of money that the seamers had
been promised. Thereupon, Desaulnier went to the coffee
area where the women had gathered along with a couple of
men who also worked on the line. The women stated they
felt that the situation was very unjust and that the
Respondent had broken its contract with them. Before the
girls consented to work, therefore, Desaulnier approached
Neil Allman, a supervisor or foreman on the 200 line and
informed him that the girls were refusing to work because
of the recission of the pay raise. Allman told Desaulnier to
inform the girls that if they did not work they were going to
be fired. Desaulnier returned to the girls and informed
them of Affman's, words but they still refused to work.
With that, Desaulnier returned to Allman who repeated
the message that the employees would be fired if they did
not go to work. Finally, Allman stated that if the girls
would go to work he would have David Parkinson, the
personnel manager, come down to talk to the girls and
explain the situation to them. When Desaulnier related this
to the seamers on the 200 line, they went back to work
based on Allman's promises Eventually, after the morning
coffee break the girls again refused to work' because
Parkinson had not spoken to them as promised. However,
finally Parkinson did arrive on the scene.
After refusing to speak to the girls as a group, Parkinson
explained to each of them individually that the raise had
been put through his office in error, and in his absence,
and without his knowledge, although his name appeared
on the announcement and, therefore, there had been no
official consent given for the raise to be given. Parkinson
explained to the girls that each job in the plant had been
evaluated on a regular job evaluation plan and that these
jobs had just been recently rated; that the rating had been
discussed with the foreman on the shifts and a wage rate of
the utility classification, in which seamers fell, had been
decided upon at $3 an hour. However, he further explained
to the employees that the seamers on the 100 line were paid
a slightly higher rate because their work was more delicate
and required more skill in handling and that there had
been an' error when the seamers on both lines had been
given the same raise up to $3.08 an hour. This, according to
6 From credited portions of the testimony of Desaulmer. Allman did not
testify.
Parkinson, explained the mistake and he told the girls
individually that companies make mistakes just as people
do and that he wished they would understand.
According to Desaulnier, he, Desaulnier, was infuriated
because the girls had lost their wage increase and he told
Parkinson that he was upset because of all the discontent
in the plant. Desaulnier testified he further told Parkinson
that they were planning on starting a union and that he felt
that there was going to be a strike that day and that the
girls were not going to go back to work.
During this conversation one of the male seamers,
Danny Sparks, according to Desaulnier, stated that he was
going to call the "Labor Board." Sparks thereupon left the
room and came back later and said that he had spoken to
the Labor Board and the Board told him they would have
to come down and talk to the Board as a group. The girls
then told Desaulnier that they wanted to talk to the Labor
Board as a group. According to Desaulnier, Parkinson was
present when all of this occurred and informed the
assembled employees that if they were going to talk to the
Labor Board they would all be fired. He further stated they
were not allowed to leave the building.
Parkinson, on the other hand testified that he heard that
there was a work stoppage on the 200 line that morning but
that he was not a witness to it. He also specifically denied
that the word "union" was mentioned at all and thereby
refuted the testimony of Desaulnier that Desaulnier told
him that they were going to form a union and perhaps go
out on strike.
Aside from my observation of both Desaulnier and
Parkinson, I credit Parkinson's version of the conversation
of the morning of January 9 with regard to the mention, or
nonmention, of the word "union" or reference to any
unionization or strike. This is so because various employ-
ees of the Respondent, who in testifying that they had
concertedly refused to go to work on the morning of
January 9 because of the revocation of their promised pay
increase, uniformly testified that, although Parkinson had
refused to talk to, them as a group but had talked to them
individually, they were present during the discussion of the
entire matter and did not hear any reference made to
"union," "unionism," or "strike." The employees who so
testified were Paula Brayton, no longer employed by Glass
Guard and therefore more free to speak about the matter
than other employees who are still employed, Priscilla Cyr,
still employed at Glass Guard, and Patricia Cote. Although
Brayton admitted that she and Desaulnier did not get
along very well, nevertheless, her testimony is supported by
the testimony of Cyr and Cote and the testimony of all
three supports the testimony of Parkinson in this respect.
Accordingly, I find and conclude that when Parkinson was
present on the morning of January 9 during the discussion
of the revocation of the wage rate, the words "union,"
"unionism," or any reference to such was not mentioned
and, furthermore, there was no threat of a strike.
However, in any event, after the matter of the revoked
wage rate increase was somewhat settled and the 200 line
prefurnace personnel were to some extent mollified by
Parkinson's explanation, they still did not return to work.
This was because, at this point, Desaulnier told the
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees on the 200 line that they should not work
without guards on the machines used by them in preparing
the glass for the temperuig furnace. Desaulnier admittedly
told the 200 line prefurnace personnel that if they were
going to stop working to stop working because the
machines did not have covers or guards, and not because
of the wages. He testified that this was because Allman had
stressed that they were going to be fired if they did not
work. At any rate, the 200 line prefurnace employees
accepted Desaulnier's advice and refused to work because
the safety guards had been removed from the machines.
However, when management was informed of this,
Supervisor Laine was informed of the matter, and spoke to
Parkinson about it. Parkinson told Laine, or informed the
maintenance department, to place the guards back on the
machines.
While this alteration work was being preformed, there
was no absolute refusal to work. Laine, the shift foreman,
ordered the 200 line prefurnace people to sweep and clean
the area and, ultimately, to clean out a drainage ditch
bordering the area. During the latter course of work,
Danny Sparks, who was told to put on a pair of gloves to
work in the ditch, threw up the gloves, used abusive and
obscene language, and was thereupon discharged.?
According to Desaulnier, during this period when they
were sweeping and cleaning and while the guards were
being replaced' on the machines, Laine approached the
employees and asked if Desaulnier had calmed down.
Desaulnier stated that he had, but he felt that it was time
something was done in the plant because there were too
many injustices. In testifying, Laine admitted that he had a
conversation of a similar nature with Desaulnier and that
Desaulnier had said something to the effect that if this was
a union shop they would not have to clean the drainage
ditch. According to Laine, he told Desaulnier that this was
not a union shop and that the Respondent could not afford
to have six or seven people standing around until the
guards were repaired. Laine stated that at this point he left
the area. Laine emphatically denied that he had threatened
to fire any employee on the 200 line in the preseaming area
that day. He furthermore denied that he had any
conversation with Desaulnier on that day to the effect that
he had threatened Desaulnier that they would be fired if
they were to organize a union or that this was a capitalistic
system and the Respondent would not stand for a union.
As a matter of fact, Laine denied making any such
statements or any such threats to anyone including
Desaulnier that day or any other day. He did recall having
a conversation about unionism generally with Desaulnier
at another time when he told Desaulnier that he did not
believe that a union was necessary in the Respondent's
plant in that the Respondent treated the employees
reasonably and fairly. Laine. testified the reason he did not
threaten the employees with discharge on January 9 was
because the employees did not refuse completely to go to
work. Except for Danny Sparks, there was no rebellion on
the line after the employees were assigned to clean up the
work area and clean out the drainage ditch. There was
absolutely no refusal whatsoever to keep occupied while
the maintenance department was repairing the guards on
the sanding machines.
Because I have discredited Desaulnier in other respects, I
credit Laine 's version over the version of Desaulnier and
attribute Desaulnier's version of what occurred on that
morning to that of a disgruntled employee whose testimony
was colored by what he considered his unfair discharge for
what he thought of as protecting the employees with whom
he worked and for whom he had some color of responsibili-
ty.
According to Desaulnier, at or about the time that he
was having his conversation with Laine , as recited above,
on the morning of January 9, Dumaine, supervisor of the
100 line , came into the area from the 100 line and asked
why everyone was sweeping . Desaulmer explained to him
what had happened and, according to Desaulnier , he told
Dumaine that they were getting ready to organize as a
union and that they were on their way to start a strike.
Desaulnier further stated to Dumaine that he was
discontended and was going to try, along with the others,
to push a union through . Desaulnier further testified that
Dumaine asked if they were going to organize for the Glass
Workers and Desaulnier said that they were all going to get
together and that they were going to strike and that they
were going to try and get hold of the union leaders and get
more cards . According to Desaulnier , Durnaine then stated
that if they went ahead and did this they would all be fired.
According to Dumaine , however, he had no conversation
at all and did not speak to Desaulnier at any time on
January 9.
Although I have otherwise credited Dumaine and have
in other respects discredited Desaulnier, I here credit
Desaulnier's testimony with regard to the Dumaine
conversation on January 9. In the first instance , Desaulnier
testified twice during his testimony as to this incident.
Secondly, none of the employees who testified with regard
to the Parkinson matter, namely Brayton , Cyr, or Cote,
testified with regard to the Dumaine-Desaulnier conversa-
tion. Furthermore there is nothing in the record to show
that any of these employees were either near enough to
hear, if, in fact, such conversation took place. Accordingly,
I credit Desaulnier's version over Dumaine's mere denial
that he had had any conversation with Desaulnier on that
day.
An additional incident occurred that morning, again
involving Desaulnier and Neil Allman . During that
morning, just before lunchtime , Desaulnier and Sparks
were talking over whether they should go to the Labor
Board, the Federal Safety Commission , and OSHA to
present the whole matter . At this point , Neil Allman called
them over to the 200 line furnace line and asked if they
were still upset and to calm down because he had gotten
word that if they were to continue to make trouble and talk
about the Union they were definitely going to be fired.
Allman further stated that he had already had word from
management that he could fire the people who were talking
for any reason that he wanted to. At that point Desaulnier
told Allman ' to just go ahead and try because Desaulnier
had done absolutely nothing to the Respondent to give it
7 Sparks' name as an alleged disc m,natee was withdrawn by the Accordingly, there is no finding made in this decision with regard to Sparks.
General Counsel upon this testimony being presented at the hearing.
GLASS GUARD- INDUSTRIES, INC.
any reason or excuse to have him fired and that he had
been doing his work. Allman then repeated that Butch
Laine had earlier said that this was a capitalistic govern-
ment and that Glass Guard was a strong company and that
the employees did not stand a prayer. He also stated the
Union would not stand behind them. He further threat-
ened that Desaulnier would find himself without a job. He
told Desaulnier and Sparks that if they were going to go
ahead and call the Labor Board the way they told him they
were going to do that they were going to be fired. Allman
further stated that Parkinson was a "real nervous guy" and
was very upset that morning and just to let things calm
down, he further promised that he would have the situation
straightened out that day.8
The following morning, January 10, Desaulnier reported
for work at his-usual time. According to Parkinson, later
that morning Parkinson was in the office of Plant Manager
Robert Daly, when Butch Laine came into Daly's office
and related to Daly and Parkinson that an employee had
come to him personally and told him that it was impossible
for the employee in the prefurnace area of the 200 line to
work with Desaulnier. This employee, Paula Brayton, had
been in tears when she spoke to Laine because Desaulnier
was telling the employees on the line to change belts when
belts did not need to be changed, told them to take longer
breaks than was necessary, and told them not to work at
the usual speed that they were used to working. The
employee also said that Desaulnier told her to slow down.
Laine stated that because Desaulnier was the lead man, or
head seamer, in charge of the line in that area it was
necessary to discharge him. Accordingly, -Daly made the
decision to discharge Desaulnier.
According to Desaulnier, who denied on cross-examina-
tion that he had made any attempts to slow down the work
on the line or had instructed any of the individuals to do
so, Brayton had approached him and pointing to Neil
Allman told Desaulnier that Allman had asked her if
Desaulnier was still talking about the Union and if
Desaulnier was still upset. Brayton told Desaulnier that she
had told Allman that Desaulnier was still upset and talking
about , the Union. Allman had told Brayton to tell
Desaulnier to stop that immediately as he already had
orders to have Desaulnier fired.
Later that morning, according to Desaulnier, after
explaining to Allman that two of the girls had not shown
up, Laine came to the line to talk to Desaulnier and asked
the latter if he had calmed down. Then in a friendly way
the two talked about the fact that Desaulnier was doing a
good job for the Company but that if Desaulnier was going
to go on working there he would have to keep quiet about
the Union. Desaulnier answered that he was not going to
stop talking about the Union; that he was, going to go
ahead and solicit for the Union;, that he was going to stay
in line ; but that he was not going to stop talking about the
Union. Laine further told him, according to Desaulnier,
that, if the latter kept talking union, 'the Respondent had
already instructed Laine to fire Desaulnier.
s The foregoing conversation is taken from the testimony of Desaulmer.
A. heretofore noted Allman was not called as a witness In fact, Allman had
quit Respondent's employ shortly after January 9, 1974. Additionally,
although Desaulnier testified that Birch Brown, a foreman in training on the
200 line, was present according to Desaulmer, Brown testified that he was
183
Paula Brayton, a seamer, testified that, on January 10,
she apologized to Parkinson and later to Laine for her
actions the previous day. Brayton further testified that,
when she reported on January 10, to the work area on the
200 line, all of the employees were in a huddle. Desaulnier
wanted to rehash everything that had happened the day
before. He instructed the employees that they should not
go to work and that they should not start the machines up
that morning because once they did that and went to work
the Respondent would have them in its grip. At that point
Butch Laine came over and told them to go to work. Upon
these instructions, they all began to work. But while they
were working, Desaulnier kept telling them to slow down;
that they were going too fast.
Additionally, Brayton testified, Desaulnier, whose job it
was to get the frames to the furnace after the glass was put
on by tying the frames onto the forklift, was definitely
taking his time in doing that work. Moreover, he was
slowing down opening up the crates of glass which was also
a part of his job. The glass had to be taken out of the crates
so that they could be placed on the seamers . At this point,
Brayton testified, she had just about had it because of the
fact that she was also upset over the necessity of her son
going to the hospital for an operation and could not cope
with what was going on under Desaulnier's instructions.
Accordingly, she spoke to Butch Laine -and told the latter
that Desaulnier was trying to start everything all over
again ; that he was telling the seamers to slow down and
taking his time in clearing away the frames and opening
the crates.
Laine stated, according to Brayton, that if they were
going to start all over again he would have no choice but to
dismiss all of them. All new help would have to be hired.
Brayton denied that on January 10 she ever told George
Desaulnier that Neil Allman had told her that he would
fire anyone who was talking about the Union. Brayton did,
however, admit, that on January 9, the day before, the 200
line employees did talk about sticking together as a group.
They decided that if they struck together as a group, it
would be harder for the Respondent to break them up. She
further admitted that Desaulnier was the leader of the
group but that they went along with him voluntarily on
January 9.
Priscilla Cote substantiated the testimony of Brayton to
the effect that on January 10 Desaulnier instructed the
people on the 200 line to slow down. Cote testified that on
January 10 Desaulnier came to her and told her not to
work and not to let "them" get away with it; that they
should get back their 8 cents . Cote told Desaulnier that
they were going to work, and she did go to work. The other
girls also went to work. After that, Desaulnier slowed them
down and did not want them to work. He slowed them
down by not moving the crates with the glass in them. He
also slowed down opening the crates and also instructed
the seamers to change belts at least once for every case that
not present during any conversation between Desaulnier and Allman. I do
not credit Brown 's assertion that he was not present at the conversation. He
impressed me as somewhat fearful of divulging what might have proved
harmful to the Respondent which had recently made him a supervisor.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was opened, whereas normally they would not change belts
until they had finished two cases.9
Laine testified that on January 10 there was a problem
with regard to the production on -the 200 line. The
employees stated that they did not want to start work
without lines being painted around the machinery, evident-
ly for safety purposes. At that time, Laine approached the
group and told them that if they did not want to go to work
he could send them home and get people that wanted to
work. Thereafter, they went to work. Later that morning,
approximately between 10 and 11 o'clock, Brayton came to
him upset, in tears, and red faced and said that Desaulnier
was continually telling them to slow down, making them
change sanding belts more often than necessary, and also
to sand glass that did not need to be sanded, generally
causing, them to stop work. Laine instructed Brayton to go
back to work, that he would take care of it. He
immediately went to Daly's office and had a conversation
with Daly during which Dave Parkinson came in. Laine
explained how Desaulnier was causing problems by
slowing work and disrupting work and the flow of work
through the department. Laine recommended that
Desaulnier be removed from the plant because he was
creating an atmosphere that was not good and that after
what they had been through the day before this must be
stopped. Daly agreed and said that the Respondent should
dismiss him from the plant. With Laine's agreement Daly
stated that Desaulnier should be fired. Thereupon Lama e
wrote out a dismissal slip for Desaulnier, went back to the
area, and notified Desaulnier that he was being fired for
disrupting the work. When Laine informed Desaulnier of
this Desaulnier said "Good, this is just what I've been
waiting for. I am really going to give it to this company
good."
On cross-examination, Laine admitted that he did not
make a further investigation beyond Brayton's statement
to him because he knew that production was down.
Considering what had happened, he did not find it
necessary to check again' and make an investigation of
what Desaulnier's actions were because he could see from
what had happened that Desaulnier was the cause of the
slowdown. Earlier in the day Birch Brown could not
definitely pin down why production was slow on the line,
but Brown did state that they were using more sanding
belts than they would normally _ use. Therefore, after
Brayton's complaint he took Brayton's word for what had
occurred under all of the circumstances. However, Laine
admitted that he was still very upset about what had gone
on the day before. He further admitted that some time on
the morning of the 9th or 10th, contrary to his earlier
testimony, George Desaulnier said something along the
line that if there was a union shop they would not be able
to change the wages from $3.08 an hour to $3 an hour.
Also, the word union was mentioned when they were
cleaning the ditch, Desaulnier said that that wasn't their
job, and that they would not have to do it if there was a
union there. Accordingly, I fmd and conclude that
Desaulnier did speak to Lame on two occasions either on
the 9th or the 10th of January before Desaulnier was
discharged. -
C. Concluding Findings as to the Events of January
8, 9, and 10
With regard to the events on the 100 line involving
employees Skaza, Rojas, and Santiago, I fmd and conclude
that there is no direct evidence that Santiago's, Skaza's, or
Rojas' union activities were known to Dumaine when
Dumaine discharged these employees. I have heretofore
credited Dumaine's version of what occurred on that
morning. Additionally, both Rojas and Skaza admitted
that they left at noon because of the snow without
permission of their supervisors. As heretofore stated,
Touchette testified that he, without contradiction, had a
conversation on January 9 with Santiago, who did not
testify, and that Santiago told him that they were going
home because of the snow, and Touchette told Santiago
that it was their necks and not his. Touchette also testified
that there was no mention by anyone to him about
unionization on that day. He admitted that there was
knowledge that there was unionization in the shop because
there were some union leaflets evidently scattered about
the shop. However' no date for this observation by
Touchette was stated.
I have heretofore discredited Rojas and Skaza as against
the testimony of Dumaine. I have furthermore set forth the
fact that both Skaza and Rojas testified to the effect that
other employees, including Rojas and himself, had at
earlier times left without permission and had not' been
discharged. Additionally, Dumaine admitted that he had
never before that time discharged any employee' during his
stewardship as foreman' on the 100 line except one
individual whom'he had discharged for horseplay.
However, there is no showing that Touchette, a nonsu-
pervisor, ever related any conversations he had with either
Santiago, Skaza, or Rojas to Dumaine or any other
supervisor in the plant. Accordingly, I cannot infer that
Dumaine had knowledge of union activity on the part of
any of these employees. But, even assuming some knowl-
edge on the part of Dumaine of union activity on the part
of Rojas, Skaza, and Santiago, I would conclude that,
nevertheless, such union activity did not enter into the
consideration for discharge of these three individuals. They
were warned by both Dumaine and Laine that they could
not leave without peril of discipline. And, although it might
not be considered good labor relations practice to
discharge individuals who might concededly be concerned
about safety in going home early at the height of a bad
snow storm, it is not a violation of the Act to discharge
individuals for a bad reason. The Act provides for a
violation only in the event of a discriminatory reason.
In coming to this conclusion I have considered the prior
case in which the Respondent was found to have violated
Section 8(a)(3) of the Act. I have also considered the fact
that Touchette might have, known of the union activity of
some of these employees although he denied the same in
his testimony. I have also, however, considered the
9 Priscilla Cyr who was also called by the Respondent to testify with on January 10 and therefore could not testify as to any of the events of that
regard to the events of January 9 testified that she was not present at work day.
GLASS GUARD INDUSTRIES, INC.
inconsistency in the testimony-between Rojas and Skaza as
to who left in what car and where they went upon leaving. I
fmd, therefore, that the bulk of their testimony is not
believable and cannot be credited. On the other hand, I
have credited Dumaine in the respect that !he had denied
knowledge of union activity and that he discharged the
employees merely for refusing to obey orders. Under these
circumstances I find and conclude that the discharges of
Rojas, Skaza, and Santiago were for cause and Were not
violative of Section 8(a)(3) and (1) of the Act.
On the other hand, the discharge of George Desauhier
presents a more difficult problem. I have heretofore found
that with regard to Desaulnier's conversations with various
supervisors, namely Dumaine and Laine, that Desaulnier
did mention unionization or union during the day of
January 9. Moreover, the situation with regard to both the
refusal of the employees on the 200 line to work by reason
of the revocation of the wage increase and by reason of the
absence of safety guards on the machinery, points clearly
to the fact that Desaulnier was a leader of the employees in
their' protest over these wage matters and these working
conditions. Even assuming that there was no knowledge of
Desaulnier's union sympathies on the part of any of the
Respondent's supervisors or management officials, they
were nevertheless aware of Desaulnier's activities and
leadership on behalf of the employees who were protesting
the above-mentioned working conditions and wages.
Accordingly, I find and conclude that although Desaulnier
may have been somewhat abrasive and somewhat un-
schooled -with regard to employee rights on January 9, the
day of the protest in which the other employees joined, he
was nevertheless engaged, if not in protected union
activity, certainly in protected concerted activity with the
other employees with regard to protesting what they
considered to be unsafe working conditions and an unfair
reduction in wage rates. Furthermore, on that day there
was admittedly no strike or absolute refusal to do any work
upon explanation to the employees of the mistake which
caused the fury with regard to the wage rate increase
revocation or with regard to the promise to reinstall the
safety guards on the machinery. When Laine ordered the
employees to sweep the floor, clean up the area, and even
clean the drainage ditch they did so without refusing, the
only exception being Danny Sparks who was discharged
that day.1o
Accordingly, knowledge on the part of Parkinson, Laine,
Daly, and lower supervision on the 200 line that Desaulnier
was engaged in protest activity was a certainty on January
10 when Desaulnier was discharged. The question then
remains as to whether Desaulnier was discharged because
he engaged in either protected concerted activity in
violation of Section 8(a)(1) of the Act or protected union
activity in violation of Section 8(aX3) and (1) of the Act or
whether he was discharged because of the so-called
"slowdown" into which he sought to have led his fellow
employees and in which he, himself, engaged.
With regard to the slowdown, as related by Brayton and
by Cote, and as described by Laine and by Parkinson, I
find and conclude that despite Desaulnier's testimony
185
denying such slowdown, that Desaulnier, did, indeed, not
only slow down himself on January 10 but sought thereby
to slow down production on the entire 200-line. Inasmuch
as the employees on the 200 line on the 10th did not
comply with Desaulnier's request to slow down and did
not, indeed, participate with him in this slowdown except
as a result 'of Desaulnier's action which they could not
themselves contend, I fmd that Desaulnier's actions on
January 10 were completely unprotected.
Thus, arises the dilemma of whether Desauhuier's
discharge was solely the, result of his own unprotected
slowdown and the attempt to influence his fellow employ-
ees to slow down with him on January 10, or whether
entering into the consideration for Desaulnier's discharge
by his superiors was the fact of his protected activity of the
previous day_
Although Laine testified that he did not need to make a
further investigation with regard to Brayton's report to him
that Desaulnier had slowed down and thereby caused a
slowdown in production on the 200 line on January 10, it is
apparent that no investigation was made with regard to
Brayton's, report at all by either Laine or any other
supervisor or official of the Respondent. Additionally,
although Desaulnier might have been a troublesome
employee in some respects he was nevertheless held in high
enough regard by his supervisors to place him in the
position of head seamer, and, therefore, the failure to
investigate would ordinarily have to be considered very
suspicious by reason of the fact of the events of the
previous day and by reason of Laine's admitted confession
that on January 10 he was somewhat upset- by what had
occurred on January 9. An additional factor which gives
rise to suspicion of unlawful motivation is the undisputed
fact that inasmuch as he felt that an investigation was not
necessary, Laine went directly after Brayton's report to the
office of Plant Manager Robert Daly and engaged there in
conversation and discussion over the possible discharge
with Daly and with Personnel Manager Parkinson.
Despite all of the foregoing, however, f conclude that
Desaulnier's activity on January 10 was the cause of his
discharge. He was olearly, as I have heretofore found,
engaged in, unprotected activity at that time. Moreover, his
superiors knew that he was so engaged. And while it is also
true that his superiors also had full knowledge of
Desaulnier's leadership in the protest of the day before and
possibly some knowledge of Desaulnier's favoring a union
movement, 'and although I have no doubt that Laine and
other Respondent officials were annoyed and upset by the
events of the day before, I conclude that the protected
activity in which Iesaulnier engaged in on January 9 did
not immunize him against Respondent's action taken
against Desaulnier because he engaged in unprotected and
insubordinate activity on January 10. In arriving at this
conclusion I have considered the fact that Dumaine and, as
heretofore found, Lainne did threaten employees with
discharge on the day before Desaulnier's discharge.
However, although these threats were threats of discharge
for engaging in what would have been protected activity, I
nevertheless conclude that were it not for Desauhlier's
10 As heretofore set forth Sparks' name was eliminated by motion of the
General Counsel from the complaint as a discnminatorily discharged
employee.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in the slowdown of January 10 he would not have
been discharged. Otherwise put,, -l find and conclude that
the Respondent did not seize upon Desaulnier's activity of
January 10 as- a pretext to discharge him for engaging in
protected activity on January 9. Since the reasons for
discharge given by the Respondent are not found to be
pretextual, I find and conclude that the General Counsel
has not established by preponderance of the credible
evidence that Desaulnier was discharged for discriminatory
reasons. Accordingly, I shall order dismissed that portion
of the complaint which alleges that Desaulnier, - was
discriminatorily discharged.
However, with regard to the threats heretofore found by
me to have been made by Dumaine and other of
Respondent's supervisors, I find and conclude that such
threats of discharge interfered with the employees' Section
7 rights inasmuch as they were threats to discharge for
engaging in protected concerted activity and that therefore
such threats constituted violations of Section 8(a)(1) of the
Act. These are treated more fully, infra.
D, The Events preceding the Layoffs of March 22,
1974
It was found in an earlier case, heretofore mentioned,
that Respondent violated Section 8(a)(3) and (1) of the Act.
Its employees who were discharged in that case were
involved in organizing efforts on behalf of a Teamster
Union local. Involved in that case were traffic department
head, Robert Kaufman, and, among others, Rene Corri-
veau, a supervisor in the traffic department. Also involved
was William Morin, then an assistant traffic manager but
whose supervisory status is contested in , the present
proceeding. The General Counsel contends that acts
allegedly violative of the .Act in the present proceeding
occurred in the traffic department, and involve some of the
supervisory personnel, among others, who engaged in
discriminatory selection of individuals for layoff.
The traffic department is headed by Robert Kaufman.
Under Robert Kaufman are Barry Kaufman, who at the
critical time herein was coordinator for A-frame sales and
shipping and had responsibility over all of the A-frame
drivers and A -frame loaders. Barry Kaufman, additionally,
is the son of Robert Kaufman and the son-in-law of
Norman Shulman, president of the Respondent. Also, at
the time of the, events herein and at the time of the layoffs,
Corriveau, mentioned above, in March 1974 was shipping
foreman in charge of loaders of the A-frame, trucks and
also assigned runs to the A-frame drivers who make short
delivery runs in their specialized trucks.
Also at the critical times herein, according to the
Respondent and according -to Morin himself, he was
merely an,over-the-road truckdriver but who was working
as a nonsupervisory assistant in the shipping department
because of his wife's illness. However, admittedly, at the
time of the former case, mentioned above, Morin was a
11 The foregoing from the affidavit of Norman Shulman taken by a
Board investigator . Shulman was unable to testify in person by reason of
severe illness and it was agreed by counsel for the General Counsel to
accept the affidavit as testimony which Shulman would have testified to had
he been present . The affidavit also states that the Respondent had no
knowledge of the filing of a Teamsters petition for a representation election
supervisor in the traffic department and later, in July 1974,
he once again became a supervisor. The discussion of
Morin 's supervisory status at the critical times herein is
contained in this decision below, Also, at the time of the
layoffs of March 22, 1974, -Francis Demand, who is no
longer employed by the Respondent, was the foreman in
charge of the'.trailer, or over-the-road, drivers and also was
in charge of the shipping and receiving crew.
Apparently, from approximately December 1973, the
Respondent began having financial difficulties. This was
caused by the fall off in the building and housing industry.
However, Norman Shulman, chairman of the board of
directors- and chief operating officer of the Respondent,
decided that because of the Christmas holidays he would
not order a layoff. Although business picked up somewhat
in January '1974, from that point on Respondent's
economic difficulties increased. Although production was
maintained at, the same rate, sales fell off and Respondent
had built up inventory for which there were no orders.
Additionally, , by the beginning of March 1974, the
Respondent's ' cash flow was such that it was unable to
meet its bills. Moreover, in the, middle of March,
Respondent had been refused a loan by its bank and could
not raise sufficient cash to maintain the then present level
of production.
As a result of the foregoing, President Shulman, together
with other officers of the corporation, decided that it would
be necessary to lay off one entire shift and also to order
layoffs on other shifts of individuals who were not
absolutely necessary and to thereby reduce the payroll by
approximately one-third. This was decided at a meeting
held on Tuesday or Wednesday before the layoffs which
occurred on March 22. The various department heads were
instructed to make these layoffs but were not instructed in
any manner with regard to the individuals who were to be
laid off aside from the members of the third (night) shift."
As noted above, in late January and February, the Glass
& Ceramic Workers were leafletting the plant. Sometime in
the beginning of March 1974, employee Richard Boucher
arranged for a meeting on March 9 at the union hall.of the
employees of the traffic department with Teamsters Local
170, one of the Charging Parties herein. Most of the drivers
attended the meeting which was announced by Boucher,
who at the time was an over-the-road driver. One of the
loaders who attended was Peter Lawson. During the
meeting held on March 9, Boucher was selected as
committeeman and Lawson was selected to assist him.
Thereafter, the employees who attended the meeting, and
who supported the Teamsters, campaigned among other
employees, and passed out authorization cards.12
As -will be set forth in more -detail hereinafter, the
supervisors of the traffic department, including Robert
Kaufman, were aware of this organizational attempt by the
Teamsters.. As as matter of fact Parkinson, Respondent's
personnel director, admitted he saw leaflets for the Glass &
Ceramic Workers at the plant in late February and early
with the Board at the time the layoff decision was made . Because there has
been no opportunity to cross-examine Shulman , I do not accept or reject
this portion of his affidavit.
12 From uncontroverted portions of the testimony of Boucher -and
Lawson.
GLASS GUARD INDUSTRIES, INC.
March and also admitted that he had seen the petition
which the Teamsters filed on March 19, 3 days before the
layoff hereinafter described.
In addition to the foregoing, a number of the A-frame
drivers, and loader Lawson, attended a party on Saturday,
March 16, at the home of one of the A-frame drivers.
Corriveau, the shipping foreman, also attended the party.
In addition, some of the A-frame drivers who were laid off
on March 22 were among those who attended the party.
While there is some dispute as to what occurred at that
party between Corriveau and Lawson, from the testimony
of each of these individuals it is inferred that Lawson told
Corriveau, in the presence of others, that Lawson was
personally spearheading the attack in the attempt to have
the Union represent the traffic department employees.
Lawson also told Corriveau about Lawson's activity in
passing out union cards 13 Moreover, both Corriveau and
Robert Kaufman admitted in their testimony that on the
following Monday, March 18, Corriveau informed Kauf-
man of Lawson's behavior at the party the previous
Saturday night. According to Corriveau, Kaufman's only
reaction was "Corriveau had had a rough night."
Additionally, during the week preceding the layoff of
March 22, Robert Kaufman engaged the drivers in
separate conversations with regard to other matters.
According to Kaufman, he heard from one of the
Respondent's customers in Ohio that one of the tractor-
trailer drivers had informed the customer that the
employees of the Respondent were going to strike. Also, at
approximately the same time Kaufman 'had heard a
Teamsters business agent, Nunziello, state, "Hitler had not
killed enough Jews." According to Kaufman, by reason of
the two foregoing incidents, he called each driver in
individually and spoke to them telling each that if he heard
of any other driver telling any customer that the employees
of the Respondent were contemplating striking, the
individual driver or drivers who related such matters to
customers would immediately be discharged. Additionally,
Kaufman at that time told the drivers, according to
Kaufman's testimony, that he did not care and it made no
difference to him if a union came in the shop but that he
would never permit Nunziello to set foot in the Respon-
dent's plant.
The foregoing version of Kaufman's conversations with
the drivers was controverted, to an extent, by the testimony
of employee Freeman Davis, a tractor-trailer driver. Davis,
a card signer for Local 170 of the Teamsters, was
interviewed by Robert Kaufman, as admitted above,
approximately a week before Davis was laid off. According
to Davis, Kaufman informed him that, if any driver
informed any customer that there was going to be a strike
between the truckdrivers and if Kaufman found out who
did this, the driver or drivers would be dismissed. Kaufman
did not accuse Davis of being one of the people who stated
this. According to Davis, Kaufman also stated during the
interview that he did not want Local 170 or Local 25 of the
Teamsters to come in and that if the drivers were successful
in getting either of these locals to represent them he would
13 Under these circumstances, Comveau's testimony to the effect that
Lawson was drunk at the party and that his behavior was "obnoxious" to
the other people present is unimportant. Suffice it to say, by this
187
close the doors to the truckdrivers. Kaufman also added
that he might accept any other union and would go along
with it but would not accept Local 170 or Local 25. Davis
admitted, on cross-examination , that he did not inform
Kaufman or any other of Respondent's supervisors that he
had signed a union card.
Because Robert Kaufman was directly involved in the
earlier unfair labor practice case in which the Board found
that the Respondent had violated Section 8(a)(1) and (3) of
the Act, and for reasons hereinafter set forth, I find and
conclude that Davis' version of the conversation between
Kaufman and Davis is the more reliable, even though
Davis, in testifying, made no mention of Kaufman 7s
expressed dislike for Union Business Agent Nunziello. I,
accordingly, find that Kaufman although understandably
upset and resentful by reason of the bigoted remark of
Nunziello, also expressed his aversion to the Teamsters
local which was actively engaged in organizing, the
Respondent's drivers and other traffic department employ-
ees.
In addition to all of the foregoing, Barry Kaufman, the
son of Robert Kaufman, and himself a supervisor of the A-
frame drivers, testified that, during the period preceding
the layoffs of March 22, there was a "rumor" flying around
the Respondent's plant that Teamsters cards were being
passed out and signed. Barry Kaufman admitted that he
spoke with people on the floor about this and that Rene
Corriveau told him that cards "might" have been signed
and that "everybody was doing this." Barry Kaufman
further testified that he did not obtain from Corriveau the
names of any individuals who were active in union
organizational matters or who had signed cards and did
not recall if he asked Corriveau for any specific names.
Barry Kaufman further testified, incredibly, that he never
told anyone about his knowledge of the union activities
since it was common knowledge in the plant before the
layoff. As noted above, Barry Kaufman is the son of
Robert Kaufman and the son-in-law of Norman Shulman,
president and chairman of,the board of the Respondent.
It should also be noted in connection with the foregoing,
that Robert Kaufman, when first questioned as an adverse
witness by counsel for the General Counsel, flatly denied
any knowledge of Teamsters cards being passed out.
However, when he was informed that his son, Barry
Kaufman, had testified to the contrary, Robert Kaufnan
changed his testimony to say that he did have knowledge
of cards being passed out outside the plant. Robert
Kaufman further testified that he had no knowledge of his
employees discussion of the Teamsters Union, but then,
when pressed, modified his testimony to admit that there
was "probably" open discussion among the employees. For
this and for other reasons as noted above, I conclude that
Robert Kaufman for the most part, was not a credible
witness . It is in this context that the following individual
layoffs were reviewed.
However, it must also be noted that the decision to lay
off approximately one-third of the Respondent's approxi-
mately 300 employees was made several days before the
conversation Comveau learned of Lawson 's union activities and sympa-
thies.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff and that the various department heads were told to
make their selection for layoffs only 2 days before the
layoffs were actually to take place. In other words, they
were informed on the 20th that their selections must be
made and the employees laid off on March 22. Additional-
ly, although counsel for the General Counsel refused to
concede that the basic reasons for the layoff of one-third of
the Respondent's employees was economic, the record fails
to reveal that the bulk of the layoffs were caused by any
union activity, but were the result of economic necessity.
However, as also heretofore noted, the choice of certain
individuals within the traffic department for layoff is
questionable, even assuming and accepting the fact that
the choices had to be made in haste in order to meet the
layoff deadline pronounced by Respondent's president.
It should also be noted that the individuals allegedly
discriminatorily selected for layoff in the traffic depart-
ment comprised only a very small proportion of the
approximately one-third of the Respondent's employees
who were laid off on March 22.
E. The March 22 Layoffs in the Traffic
Department
1. Peter Lawson
As noted above, Lawson was designated at the meeting
of March 9 as the assistant to Richard Boucher on the
organizing committee. Lawson was first hired by the
Respondent in November 1973 as an A-frame driver.
However, on January 29, 1974, he lost his driver's license.
Nevertheless, he was not discharged but was permitted to
work on the loading dock under the supervision of Rene
Corriveau. Heretofore, the incident of the Saturday night
party in which Corriveau learned from Lawson of the
latter's union activities and sympathies, and Kaufman's
acknowledgement of the fact that Corriveau informed
Kaufman of this matter, has been related in full. Addition-
ally, Lawson testified that, on the Monday morning
following the Saturday night party, he went to report to
Robert Kaufman's office but was informed by Frank
Demand not to enter Kaufman's office at that time
because "everybody was extremely upset with Lawson."
Demand, who is Lawson's wife's brother-in-law, then took
Lawson into an empty office and asked Lawson "What the
hell are you trying to do?"
When Lawson asked Demand what the latter meant by
that remark, Demand stated "How do you expect Bob
Kaufman to try and get your license back, and all the time
you are trying to get Teamsters 170 into this company. You
stabbed Rene Corriveau in the back. Everybody is
extremely upset with you."
Demand also asked Lawson if the latter did not know
that there were many ways in which Lawson could be fired
or let go without ever bringing the union connection into
the picture. Lawson then told Demand that, in view of the
fact that the Respondent would not cooperate with the
employees as a group so they could meet halfway and
14 Demand did not testify as to his incident. Although the conversation,
according to Lawson, contained other matters, the pertinent parts are
recited above Accordingly, by reason of my observation of the witnesses
discuss their differences, he had no other choice but to
back the Union.14
Lawson further testified that until that Monday he would
normally wait, after he had finished his day's work, inside
the plant after, calling his wife to come for him. His wife
normally took about 20 minutes to arrive. During that
period of time, Lawson had usually either spent the time
talking to Corriveau or to other employees at the shipping
department. However, from that Monday on Lawson was
not permitted by Corriveau to remain inside or to talk to
anyone. He had to remain outside the plant to await his
wife's arrival to pick him up.
According to Respondent' s witnesses, Barry Kaufman
and Rene Corriveau, they together made the decision to
select Lawson as one of the individuals to be laid off.
According to Corriveau, at the time of the layoff there were
six loaders. They decided between them to lay off the three
junior loaders, one of whom was Lawson inasmuch as they
were the least experienced at the job. Corriveau also
testified that he was not happy with Lawson because
Lawson, in addition to everything else, was hard to work
with. According to Corriveau, most of the time Lawson
wanted to be boss, telling people what to do, whereas
Corriveau was in charge of the unit. Corriveau testified
that he attempted, on a number of occasions, to explain to
Lawson that Corriveau was the only boss in the unit.
Corriveau also testified that there were times when drivers
would come in and Lawson would go into a comer with
them to discuss matters which, Corriveau claimed, he did
not know the content. Corriveau would have to call
Lawson back to work. Corriveau stated that he did not
prevent Lawson from talking to other drivers but merely
had to keep at him to force Lawson to do the job that was
assigned to him.
Corriveau further testified that the department was cut in
half and that the most junior man was cut off, as was
Lawson, and also a man by the name of McKeege. The
most junior man was laid off because he had no experience
whatsoever having been hired but a short time before.
McKeege was laid off because he had a long record of
absenteeism and tardiness and, of course, Lawson was laid
off for the reason set forth above. The employees who were
retained, Berrios and Colon, were tie men and were the
only two tie men in the plant. Corriveau had to retain
them. Furthermore, they both had been in the Respon-
dent's employ for about 3 years and were, therefore, the
most experienced. The third employee who was retained
was Ralph Davis who had also been employed for quite a
while and was an excellent worker who worked well with
other people and who gave Corriveau no problems.
Corriveau explained that, even if the party the week
before had not taken place and had Corriveau not heard
from Lawson with regard to Lawson's union activities and
sympathies, Lawson still would have been one of the
individuals chosen for layoff. I
Thus, the Respondent argues that it is apparent that
Corriveau was forced, in order to operate his department,
to retain the individuals whom he did retain and to lay off
and because the conversation was not demed by Demand, I credit Lawson
in all respects with regard to this conversation.
GLASS GUARD INDUSTRIES, INC.
those whom he did lay off by reason of the experience
factor and the other factors mentioned by Corriveau in his
testimony. The Respondent further contends Lawson
would have been laid off in view of the substantial
reduction in the Respondent's sales and his layoff cannot
be considered as being discriminatory, despite the fact that
Lawson engaged in union activity and that such activity
was known to the Respondent.
I agree with the contention of the Respondent. While it is
true that Robert Kaufman and Corriveau both were not
completely credible in their testimony and while it is
further true that Kaufman, if not Corriveau, did express
antiunion sentiments shortly before the layoff, I neverthe-
less conclude that the layoffs being economic in nature,
and considering that the total number of individuals laid
off in the traffic department were slight in comparison to
the number of individuals laid off in the entire plant, and
considering the magnitude of the overall layoff, I fmd and
conclude that Lawson's layoff was not discriminatory and
that he was, in fact, laid off for economic reasons and that
he was chosen for layoff for the reasons testified to by
Corriveau.15
2. Gerard Schofield and Patrick Birch
Schofield was an A-frame driver under the supervision of
Barry Kaufman. He had worked for the Respondent
steadily from 1972 until his layoff on March 22, 1974.
Schofield attended the Teamsters meeting on March 9,
signed a union authorization card, and also attended the
Saturday night, March 16, birthday party at which
Corriveau and Lawson had their conversation with regard
to the Union as set forth above. However, Schofield did
not participate in any way in the discussion at the Saturday
night party.
According to Barry Kaufman, Schofield and another
driver, or assistant driver, Patrick Birch, both of whom
worked immediately under Barry Kaufman and Rene
Corriveau, were selected simply because of suspicion of
theft of glass of considerable value. Barry Kaufman
testified that approximately a week before the layoff the
Respondent's credit manager came to him and wanted to
know why a certain customer did not receive certain glass,
he having signed a receipt for it. Kaufman, at that moment
could not answer because he did not know what the matter
was all about. The credit manager said the customer was
not going to pay the bill because he did not receive the
glass. As a result, Kaufman immediately checked the logs
with Rene Corriveau. Each piece of glass that is loaded on
the A-frame is logged whereby an invoice number for each
piece is put on a record, type of glass which is loaded on to
each truck is recorded, together with the number of pieces.
The logs or records of Corriveau showed that the glass in
question was loaded onto the truck. Kaufman then
checked the copy of the delivery receipt and determined
that the customer had signed in full. Kaufman then took
the copy of the delivery receipt and noticed that there was
some scribbling on one side of the receipt and when it was
turned over on the carbon copy there could be seen the
15 See Bancroft Mfg. Co., 210 NLRB 1019 (1974). It should also be noted
that in his own testimony Lawson testified that the three individuals who
were retained in his group after he was laid off had all signed uni on cards.
189
letters B.O., which evidently stands for "back order." This
informed Kaufman that the driver did back order the glass
but that Kaufman had to assume that the B.O., was
scratched out before the copy was shown to Kaufman.
Therefore, Kaufman having no way to account for the
missing glass, did not know what to do and assumed that
the glass was stolen. The driver on that delivery was
Schofield and his assistant was Birch. According to
Kaufman, and according to the invoice, the missing glass
was worth over $600.
However, Kaufman admits that the only investigation he
made into the matter was to compare Schofield's signature
on the delivery receipt and the back order together with
Schofield' s gas receipts. The gas receipts were signed by
drivers who had charge cards in order to purchase gas
while on the road on behalf of the Respondent.
Unless it was assumed that someone skillfully forged
Schofield's name to the copy of the delivery receipt and
invoice upon which Schofield' s name appeared and which
Respondent claims is Schofield's, I must conclude that the
signature on both the receipt and on the gas receipts is the
same inasmuch as they are printed consistently with
exactly the same type of printing and exactly the same
shape letters with the same apparent peculiarities which
would tend to be completely individualistic. Although no
handwriting expert was called to testify, Tam convinced
that the copy of the delivery receipt with the initials "B.O."
and "Schofield" printed thereon was signed by Schofield.
However, from comparing the "o" in Schofield's printed
signature on that receipt and on the gas receipts to the "o''
in the "B.O." found on Respondent's exhibit which was a
copy of the delivery receipt, I find that the "o" was
probably not printed by Schofield. Or, at least, it was not
the type of "o" printed by Schofield on the other
documents.
Additionally, I am suspicious of the reason advanced for
the selection for layoff of Schofield and Birch. Although
Barry Kaufman was confronted with the missing glass
matter approximately a week before the layoff, he never
mentioned the matter to Schofield or asked Birch about the
so-called disappearance of the glass. It would seem that
with the alleged disappearance of glass valued at $600,
Barry Kaufman, although young and perhaps somewhat
inexperienced at his job, would have made a further
investigation by at least questioning the two drivers
allegedly involved.
Another matter which enters into the complete picture
with regard to Schofield, is that in June 1974 he was
recalled to work by the Respondent, although not as an A-
frame driver but as a tow motor driver in the Respondent's
plant.
Birch testified as did Schofield that they had nothing
whatsoever to do with any missing glass and were not
involved in any theft. Moreover, Birch testified that Barry
Kaufman told him he was laid off due to lack of sales.
Birch then said to K a u f m a n " W h o a r e we kidding ... .
You know if I never got involved with the Union, I would
However, I do not rely on this as a basis for my decision herein because
there is no testimony to show that Comveau knew that the three had signed
union cards.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a job today." Barry Kaufman answered "What can I
say?"
Neither Birch nor Schofield were ever reprimanded in
any way and certainly no written reprimands were made
against them. There was no testimony other than this
suspicion of theft that either of these employees were
anything but model employees.
While it is true that it is not the Respondent's part to
prove that Birch and Schofield actually did engage in a
theft of the allegedly missing glass and that the suspicion
thereof would have been provocation enough for the
Respondent to select them for layoff at a time when layoffs
were necessary, I fmd it highly unlikely that the Respon-
dent would have rehired Schofield had it retained a
suspicion that he had been involved in a theft. It is true
that, between the time of the layoff and at the time
Schofield was rehired, the matter could very well have been
cleared up and that, therefore, Schofield's rehiring could
have a logical explanation. However, there was no such
testimony offered by any of the Respondent's witnesses.
Although there is no direct testimony with regard to
Respondent's knowledge of the union activities of Scho-
field and Birch, who merely signed union cards and who,
in the case of Schofield, attended the Saturday night party
and witnessed the Corriveau-Lawson incident, I fmd and
conclude that Schofield and Birch were selected for layoff
by reason of their union sympathies and activities or, at the
very least, that the Respondent suspected such union
activities and sympathies. Although I have heretofore
found that Lawson, regardless of his union activities,
would have been laid off, I fmd no such situation with
respect to Schofield and Birch. Moreover, I note the
testimony of both Barry Kaufman and Corriveau that
there was a great deal of talk about union or at least they
heard rumors of such talk with regard to the Union in the
plant and among the drivers in the weeks preceding the
layoffs. Additionally, I cannot conclude that Corriveau
and Barry Kaufman worked in a vacuum and without in
any way ever speaking to their superior, Robert Kaufman,
whose antiunion bias has been set forth and expounded
heretofore.
Accordingly, I fmd and conclude that Birch and
Schofield were discriminatorily selected for layoff.
3. Nelson Gauthier
There is little factual dispute with regard to the incident
leading up to Gauthier's selection for layoff.16 Approxi-
mately 1 week before the layoffs of March 22, Respon-
dent's customer named Keller, who had received a delivery
of glass on a truck driven by tractor-trailer driver Gauthier,
had been told by Gauthier that the men (drivers) were
possibly going out on strike. The customer contacted the
Respondent and Robert Kaufman was informed of this
situation. Kaufman warned Gauthier, after the latter
admitted that he had told the customer that the drivers
would possibly go on strike, that if Gauthier was going to
do this again he would be fired. As heretofore set forth,
Kaufman told each driver that, if any of them spread such
16 Gauthier did not testify.
17 Granston Print Works Co., 115 NLRB 537, 541-542 (1956); Glazier's
a story about to the Respondent's customers, the guilty
ones would be immediately discharged.
Consequently, when 48 hours prior to March 22, Robert
Daly, the plant manager, notified Robert Kaufman that 5
out of the then existing complement of 17 tractor-trailer
drivers were to be laid off, Kaufman, realizing what had
happened with regard to Gauthier, selected him as the first
individual for layoff. It should be noted in connection with
this that it was William Sherlin, Respondent's sales
manager, who originally informed Kaufman of Gauthier's
statement to Keller Industries in Canton, Ohio. The
customer had asked if he should look for another supplier
because he understood the Respondent was going on
strike. Accordingly, it could very well have been that
Gauthier's remark to the customer could have resulted in
the loss of the customer. Respondent managed to retain the
customer because the sales manager reassured the custom-
er that Glass Guard would be able to fulfill its obligation to
the customer.
I fmd and conclude that Gauthier's statement was
unprotected activity. His statement was prejudicial to the
Respondent's business interest and, accordingly, the
selection of Gauthier for layoff by Robert Kaufman was
both reasonable and nondiscriminatory under the circum-
stances even assuming Kaufman's union animus.17
I also note in connection with this particular layoff, that
there is absolutely nowhere in the record any evidence
whatsoever that Respondent, including Kaufman himself,
had any knowledge of Gauthier's union activity. Although,
as in the cases of Birch and Schofield, the Respondent
through Kaufman and other supervisors in the traffic
department could have reasonably known of the union
activities of the employees in that department by reason of
the many discussions that took place in the department,
and were overheard as admitted by both Barry Kaufman,
Robert Kaufman, and Corriveau, there is no evidence in
the record that Gauthier, himself, even signed a union
card.18 While Gauthier's statement to the customer to the
effect that the drivers might possibly strike, this remark, as
noted above, was unprotected and, moreover, did not
necessarily lead to an inference that Gauthier, himself, had
engaged in any activity or, that Gauthier was necessarily
sympathic to the idea of a strike or union activity.
Accordingly, I fmd that Gauthier's selection for layoff was
nondiscriminatory and shall dismiss the complaint allega-
tion with regard to Gauthier.
4. Freeman Davis
According to the testimony of Robert Kaufman, Free-
man Davis, an over-the-road driver, was selected for layoff
by reason of the fact that Davis was single. Davis, on the
other hand, testified that, although he is not married in that
no marriage ceremony took place, he considers himself
married by common law and has lived with the same
woman for 8 years. Moreover, he has had two children by
this woman and has carried these dependents on his
income tax withholding forms and on the Respondent's
insurance plan, matters which the Respondent had within
Wholesale Drug Company, Inc, 209 NLRB 1152 (1974).
18 Gauthier did not testify.
GLASS GUARD INDUSTRIES, INC. 191
its knowledge. Moreover, Demand, on a number of
occasions, had called Davis' home and the telephone was
answered, when Davis did not answer the phone, by his
wife or one of the children. Additionally, Kenny LaPratt,
another driver who was also single and had less seniority
than Davis at the time of the layoff, was not laid off.19
Additionally, heretofore referred to were the conversa-
tions between Robert Kaufman and the tractor-trailer
drivers in which Kaufman warned the tractor-trailer
drivers to the effect that if any of them told any customer
that the drivers were going on strike such individual would
be immediately discharged. Davis testified that, in the
conversation with Robert Kaufman with regard to this
foregoing matter, Kaufman also told Davis that he
definitely did not want Local 170 or Local 25 in the shop
and that he would close the doors to the truckdrivers if
either of those locals became representative of the
drivers.20
An additional conversation took place at almost the
same time between Davis and William Morin in which
union and union organization were discussed. However,
because the Respondent denies that at the time of the
conversation Morin was a supervisor or agent of the
Respondent, at this point the status of Morin at the time of
the conversation must be decided. In July 1973, Morin was
foreman in the shipping department in charge of the trailer
drivers and the shipping and receiving crews. Sometime
thereafter, Morin left the Respondent's employ, and was
later rehired in the fall of 1973 as an over-the-road driver.
According to Morin in January, February, and March
1974 he was doing local runs for the Respondent and was
assisting Frank Demand on inside loading and unloading
trucks. Morin testified that the reason he was given an
inside job during those months was because Morin's wife
had become ill and Demand placed him inside inasmuch
as he needed an assistant . Sometime in the summer of
1974, after Demand left Respondent's employ, Morin was
again placed back as foreman of that division or depart-
ment. However, at the critical time herein, namely January,
February, and March 1974, while he was inside, Morin
admittedly took phone calls from drivers while they were
on the road. Morin testified that, when drivers would ask
him questions as to where they should go next after
completing a delivery, he would give them instructions.
However, he did this, according to Morin, only upon
specific instructions of Demand who would tell him where
to send the men. Even when the men would call Morin's
home, Demand was always there at Morin's home,
according to Morin, so that if the men asked him where to
go next he would ask Demand and Demand would give
him instructions . Accordingly, according to Morin, and
according to other of Respondent's witnesses, Morin at
that period of time was merely a conduit for the orders of
Demand and exercised no independent judgment.
On the other hand, Davis testified, somewhat in
conformity with what Demand testified, that when, he,
Davis, was on the road and called in for further
instructions , Morin would give him such further instruc-
tions and that Davis and other drivers looked to Morin for
instructions and directions as to what to do and how to do
it. On cross-examination, Morin admitted that there did
occur times when he did receive calls from drivers when
Demand was absent. However, he stated that during those
periods of time he would relay the problem to Robert
Kaufman who would tell him what to do. He testified that
he never made decisions during that period on his own.
Careful observation of both Morin and Davis convinces
me that, insofar as their demeanor is concerned, Davis
gave by far the more favorable impression. In addition to
demeanor, however, there is reason to disbelieve Morin on
the basis of matters in the record. I observe, firstly, that
Morin was discredited by the Administrative Law Judge in
the earlier case in which the Respondent was found to have
violated the Act by discriminatory discharges and viola-
tions of Section 7 rights of its employees. Secondly, I note
that Morin was admittedly a supervisor both before and
after the critical times involved in the present proceeding.
Morin admitted that he knew and was thoroughly versed in
the job of foreman of the over-the-road tractor-trailer
drivers and the loaders and unloaders. Again, Morin
testified that at virtually all times, even when he was at
home, Demand would be in his kitchen and he would ask
Demand what to do in the event the drivers called his
home and asked him where to go and what to do next. I
find the last portion of this testimony that Demand and
Morin were virtually always together completely incredi-
ble. Finally, although in other portions of his testimony
Morin admitted that he heard much union talk among all
the drivers, he testified he never entered into a discussion
about the Union; this, despite the fact that Davis testified
with clear and definitive memory with regard to conversa-
tions engaged' in with Morin with regard to unionization.
Accordingly, and for the foregoing reasons, I find that the
Respondent's denial that Morin was a supervisor at the
times involved herein is not acceptable and I further find
and conclude' that Morin did exercise independent judg-
ment in assigning work to employees and directing the said
employees in their work. This being so, it must be
concluded that Morin at the times involved herein was a
supervisor within the meaning of Section 8(aX3) and (1) of
the Act and Section 2(11) of the Act.
Having found Morin to be a supervisor and having
already credited Davis over Morin with regard to their
individual testimony, I come now to a conversation to
which Davis 'testified which occurred during the week
preceding the March 22 layoff. During the week, according
to Davis' credited testimony, and after the conversation
with Robert Kaufman as related above, Morin engaged
Davis in a conversation in which Morin asked Davis what
the latter thought of the Union. Davis stated that he had
worked for another company for roughly 10 years and that
that company was unionized and he was for the Union all
the way. Morin answered "Well, what can a union do that
the company can't?" Davis answered to the effect that if
the Union was in the employees would be protected in
their rights and that if they had a "beef or something like
that" they could file grievances and the Respondent could
not just merely fire an employee for expressing a grievance.
19 All of the foregoing from the uncontroverted testimony of Davis and 20 I have heretofore credited Davis over Kaufman's version of this
from records of the Respondent. conversation.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis also mentioned that union contracts also required
arbitration -of grievances. Davis also cited to Morin a case
in which an individual had been discharged because he
refused to take one of the tractors out because the tractor
was not in fit running condition. Davis stated that had
there been a union this man would never have been fired.
To this Morin answered, "this is a nonunion shop, and if
you try and get involved in a union, you will be looking for
another job:" The foregoing is the substance of the
conversation with Morin.
In view of the fact that the Respondent had within its
knowledge that Davis, although not officially or legally
married, did have dependents; the fact that Respondent's
supervisor had called Davis' home and spoken to his so-
called common law wife and children; the fact that
Kaufman had expressed to Davis his distinct antagonism
toward Local 170; the fact that both Kaufman and Morin
were both involved in the previous case against the
Respondent in which the Respondent, was found to have
violated the Act; the fhct that another employee who was
also unmarried and less senior to Davis was not laid off;
and, finally, the conversation between Davis and Morin
during the week preceding the layoff, I am convinced that
the selection of Davis for layoff was discriminatory and
was made for the purpose of preventing Davis' further
activity on the part of the Union inasmuch as he clearly
indicated to both Morin, and Kaufman his favorable
feelings toward unionization.
In coming to the foregoing conclusion, I have not
overlooked two factors surrounding Davis' layoff. The first
is that it is apparent that Robert Kaufman had a mere 48
hours to decide who to lay off and that from his own
personal knowledge of Davis he might not have realized or
known of the Respondent's records with regard to Davis'
listing of dependents. I have further taken into considera-
tion the fact, admitted by Davis, that employees who were
senior to Davis in point of time in the traffic department
were also laid off at the same time as Davis. However, with
regard to the second factor, namely that senior employees
were also laid off, I note that the Respondent has
maintained throughout the entire proceeding that seniority
was not a factor in the layoffs and that, in fact, the
Respondent did not layoff according to seniority and that
there was no seniority procedure within the Respondent's
personnel department at that time. I do not fmd that these
to the job of setup man by his supervisors and was given a
raise.
During the Teamsters organizational drive, one night
after the third shift was over, Beique signed a union card
for the Teamsters at a small club the employees habitually
went to after work. According to Beique, present at that
time were Supervisor Anderson and Anderson's brother
Robert. Beique signed the card and also passed out union
cards to others who were sitting around the table at the
time, among whom were Larry and Bob Anderson.
Further, according to Beique, he had a conversation with
Larry Anderson about the same time, the exact date of
which Beique could not remember. This was at work in the
plant. Also present was David Parkinson, Respondent's
personnel director. According to Beique, Parkinson asked
Beique how the latter felt about the Union. Beique
answered that he had no objections if it was going to do
him some good and was going to offer job security and
raise. Parkinson answered that he had known how a union
had closed factories out in Ohio. Beique further testified
that while working at Glass Guard he was complimented
on his work by Butch Laine when Laine was superinten-
dent of the third shift and just before he was laid off Laine
took Beique to his office and showed Beique that he, Laine,
had gotten more work out of the third shift than either the
first or second shifts. Beique further testified that he was
quite' friendly with Laine and discussed matters with the
latter. Among the matters discussed were the Union.
Several times at work Laine asked Beique what was going
on at the plant and what he thought was, going to happen if
a union came in and which was the best union since there
were three unions involved. Laine also asked about the
power of the Teamsters. Beique admitted, however, that
during that conversation Laine remained neutral and did
not threaten him in any way.
As noted above, at the time of the layoff Beique was the
setup man on the 200 line on the third shift. So far as
Beique knew he was the most senior man on the shift, and
that there were three employees who worked with him who
were retained who had less seniority than he had. One was
there a week, and two had been in the Respondent's
employ only 3 weeks. When he was laid off, Beique had a
conversation with both Lame and Parkinson.' Laine gave
him a layoff slip. Beique asked how it was that Beique was
l id ti h h i h dth da e me w en e was ng suc a goooff at otwo factors preponderate against the finding in view of the being
other factors cited above which I fmd to be,stronger and of job and Laine knew of that. Laine explained that he did
greater weight and therefore conclusive of the fmding I not choose Beique for layoff but was just passing out the
have made. slip. Beique also asked Parkinson how he had come to be
h 'C_ 1 ff P kip *_1A B that F kinn r o r n ar son
F. The Layoff of Alan Beique
Beique was not employed in the traffic department, but
rather was, at the time of the layoff, a setup man on the
production line. Beique had worked for the Respondent
the summer before while he was going to school, At the
critical times herein Larry Anderson was his immediate
supervisor and Butch Laine was the third -shift superinten-
dent, the shift upon which Beique worked.
According to Beique, although he was a setup man at the
time of the layoff, he was rehired on January 7, 3 months
prior to the layoff as a seamer. Thereafter he was promoted
. a -1-sc ose ay o
had received Beique's name from "up above" and that
there was nothing he could do about it. Beique stated on
cross-examination that he had never received any written
slips of reprimand nor was he ever spoken to by any
supervisors about this conduct.
The testimony of Larry Anderson was quite the opposite
of that of Beique. Anderson testified that Beique was a
troublesome employee, that he would 'not follow instruc-
tions, and that when it came time to discuss ' who should be
laid off on March 21 the discussion lead to Beique.
Anderson told Parkinson and Superintendent Daly that he
just did not believe that Beique was the type of person to
GLASS GUARD INDUSTRIES, INC. 193
be employed on the job because he was not performing his
job properly, had a negative attitude toward his work and
toward has fellow - employees, the quality of his work was
not good , and that he was not producing up to standard.
Anderson identified General Counsel 's Exhibit 6 which
was an employee warning notice to Alan Beique which was
dated January 15, 1974 . This slip was introduced into
evidence and read "not obeying the rules. Takes too much
time for break." And stated that the reprimand was given
for disobedience . Anderson further testified that Beique
was not necessarily promoted but merely given a perma-
nent job as against a probationary job because the
probationary period was over and that the increase in pay
was for that reason and was not because of a promotion.
Both Anderson and Parkinson testified that they had
never spoken about the Union in any manner to Beique.
Anderson specifically denied that , although he had been to
the club mentioned by Beique at which Anderson allegedly
witnessed the signing of Teamsters cards, he had never
seen any such signing and that the visits to the club were
purely social and he knew nothing about this matter.
Additionally, Parkinson testified that when Beique had
quit as a summer worker after the summer of 1973 Beique
had not been a satisfactory employee at that time.
However, peculiarly enough , the quit slip which had space
for remarks on it and was introduced into evidence had no
such information contained thereon . Additionally, if
Beique had been an unsatisfactory employee during his
previous summer employment there arises a question as to
why the Respondent rehired Beique as a full -time employ-
ee on January 7, 1974 . Additionally, although Beique had
been given a written reprimand in January 1974, it was
after that that Beique was given tenure and was raised from
the position of seamer to setup man . Certainly if this was
not a promotion with regard to classification , it must have
been at least an assignment to a more difficult, responsible,
and exacting job. Moreover, although Beique received a
written reprimand on January 15 , Anderson admitted that
during the period from January 7 to February 7 Beique
was an average worker doing a fair job.
There are inconsistencies, therefore, in the testimony of
both Anderson and Parkinson with regard to Beique. Upon
my observation of the individuals and upon my observa-
tion of Beique and because I do not believe that Beique's
testimony with regard to Anderson 's presence at the time
that Beique signed a card for the Teamsters was pure
fiction on Beique's part , and because Anderson did admit
that he was present at the club at one time , at least, when
Beique was also present , I find that of the three witnesses,
Beique, Anderson, and Parkinson, with regard to the
matters relating to Beique , at least, Beique's testimony was
the most reliable.21
Beique further testified , credibly, that three individuals
who were not laid off were less senior than Beique and,
moreover , Beique could perform the work of any of the
individuals ' on' the 200 line on which Beique worked.
Additionally, I do not find that Beique was such an
unsatisfactory employee at any time that he warranted
choice for layoff as against other less senior employees
even though the Respondent consistently maintained that
I have taken into consideration Beique's denial he had ever received a
written reprimand.
it did not use seniority as a basis for layoff. This is so
because despite Respondent's protestations to the contrary,
I find that, even after the reprimand of January 15 , Beique
was, in fact , assigned to a more difficult and responsible
position than he had earlier . Moreover, I cannot credit
Parkinson's testimony that Beique was a poor employee
during the period when he was a summer replacement in
1973 in view of the fact that (a) the quit slip of Beique after
that period of time did not mention this fact and (b) he was
hired on February 7 without any mention being made of
the fact that upon his prior employment he was allegedly
an unsatisfactory employee . Additionally, Anderson ad-
mitted that there was talk of union going on in the plant
and that people were handing out union cards, pamphlets,
and other union matter . He further admitted that he
reported to his superior that these activities were taking
place in the plant.
All of the foregoing would indicate, in sum, that the
weight of the credible evidence is that the Respondent, in
view of the conversations between Anderson and Parkin-
son and Beique and in view of the fact that Beique testified
credibly that he made more money as a setup man than
any of the people working on the line with him and could
perform all of the other jobs that were in the department
including the jobs of the three junior individuals who were
not laid off, I find and conclude that Beique was laid off
because of the fact that the Respondent knew that Beique
had signed with the Teamsters and that , as heretofore
noted, the Respondent through its various supervisors had
expressed antagonism toward unionization.
As stated above, I have taken into consideration that
Beique received a written reprimand and I accept Parkin-
son's testimony , not mentioned above , that only very
serious matters required written reprimand. However, the
fact that Beique was advanced in his work to a position of
greater responsibility which carried with it a higher rate of
pay after he received the written reprimand , would indicate
that Beique was, indeed, not so unsatisfactory an employee
as the Respondent would have the Board believe . Accord-
ingly, I find that Beique was discriminatorily chosen for
layoff by reason of his union activities and sympathies in
violation of Section 8(a)(3) and (1) of the Act.
G. The Discharge of Richard Boucher
Boucher was hired at the end of 1973 as a trailer-tractor
driver and was supervised by a Francis (Frank ) Demand.
For some time he was a foreman loader but then returned
to driving because he could not afford to keep his family
on the salary of a foreman-loader. It should be noted that
he was promoted to such job as foreman-loader under
Demand at a time when Demand was in charge of the
department.
Heretofore, I have related the fact that it was Boucher
who originally made contact at the beginning of March
1974 with Teamsters Local 170, arranged for the meeting
on March 9 at the union hall, notified the drivers and the
other people in the traffic department of such meeting, and
was selected asunion committeeman.
194 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Boucher was discharged on Sunday, March 24, 2 days
after the layoff of March 22, by Demand. According to
Boucher, on the Friday before, March 22, Demand called
him on the phone and told him that he was to take out a
trip on Monday morning. On Sunday afternoon, Boucher
called Demand and told the latter that he was going to
refuse to take the run. Without asking for any reason why
Boucher was refusing to run Demand just stated "You re
laid off." Boucher then asked when he could get his layoff
slip and Demand simply hung up without answering. -
On the following morning, Monday, Boucher went to the
Respondent's premises at approximately 10 in the morning
and asked for his layoff slip from Demand. This was in
Robert Kaufman's office. Boucher testified that Demand
told Boucher there was no layoff slip and that Boucher had
been fired. When Boucher asked Demand why he had been
fired Demand answered that it was because Boucher had
refused to make the run. Boucher then reminded Demand
that the latter had not even asked Boucher over the phone
on the previous day for the reason why Boucher had
refused the run and had merely, without giving Boucher an
explanation, told Boucher that the latter was laid off.
According to Boucher's further testimony Demand then
asked him why he could not make the run. Boucher
answered that it was personal and that he had been
running very hard for the Company, having made double
runs to Indiana for the 6 previous days and that he just
wanted some time off to be with his wife and family and
additionally, his wife had not been feeling well for the past
week. Demand, without even accepting that explanation
merely stated "Well, we know what you guys are up to."
According to Boucher, when Demand said that, Demand
had a "silly grin" on his face.
On cross-examination, Boucher admitted that he was
made a foreman by Frank Demand for personal reasons
because he wanted to get off the`road and asked if there
was some way he could get a job working inside. Demand
informed Boucher that there might be an opening as they
were looking for a dock foreman. A few weeks thereafter,
Demand came to Boucher and offered him the job of
loader-foreman.
Anastasios Kranias a former employee of Respondent
who worked as an over-the-road driver testified that in the
summer and fall of 1973 he consistently refused to make
long-distance runs. He told Demand that he had a girl
friend and wanted to be near home. He once refused a long
run to Cleveland and was sent by Demand to Robert
Kaufman who told him to take the run but when he
returned he would be put on local A-frame deliveries.
When Kranias refused long runs, Demand never disci-
plined him and, in fact, Demand went along with his
request. Kranias also testified that he heard another driver,
Charles Bates, some time in the fall or summer of the prior
year refuse to take a run because he was tired and had just
come in from another run. Kranias had also just come in
from another run and was tired. Kaufman asked Bates to
take Kranias' place and told Bates to go to Mechanicsburg
and Bates simply said that he was not going. That was the
end of it, nothing happened to Bates. Kranias insisted on
cross-examination that during the period when he wanted
to be closer to his fiancee he absolutely refused to go on
long runs . However, he did not refuse any of the short runs.
Frank Demand was called as a witness by the Respon-
dent . At the time of the hearing, Demand was no longer in
the employ of Respondent and was living in Nova Scotia.
Apparently, he appeared voluntarily at the hearing because
living outside of the country he could not be subpenaed.
However, he did testify that he had no intention of
returning to the Respondent 's employ. I view his testimony
in that light.
Demand testified quite to the contrary of Boucher.
According to Demand, during that conversation on
Sunday, March 24, when Boucher refused to take the run,
Demand asked for the reason why Boucher refused to take
the run and Boucher had no reason and in fact requested
that he be laid off. To quote Demand's testimony Boucher
called him on Sunday, the day after he had told Boucher
that the latter was to take a run to Mechanicsburg,
Pennsylvania . A little after dinnertime on Sunday Boucher
called and said to him "Frank , I'm refusing to go out on
the trip to Mechanicsburg ." When Demand asked Boucher
if there was a personal reason and if there was something
wrong Boucher told Demand that he was "quite unhappy
about the layoff that had taken place" and wanted to know
how come he had not been laid off. When Demand
answered that he did not know inasmuch as he had nothing
to do with the layoff, Demand then told Boucher that the
latter was putting him in a spot because if Boucher did not
drive Demand could not get any drivers to take that run.
Then, according to Demand, Boucher asked if he could be
laid off. With that Demand became very upset and told
him to come down and see him on Monday morning and
then Demand slammed the receiver down.
Demand explained that the reason he was so upset was
that on the Friday before there had been a layoff, as
related above, and several of the drivers had been laid off.
Therefore Demand's department would have to run on a
very tight schedule with regard to available drivers. If
Boucher had explained to Demand that he had been ill, or
had a good personal reason or something that was
reasonable, Demand might have tried to overcome it by
calling one of the laid-off drivers back in to take the run.
After he hung up, Demand had to call around and finally
after much confusion finally was able to use a man who
had just come in off the road on the following morning.
The trip started behind schedule at or about 1,1 o'clock or
noon rather than at the scheduled time of 9 o 'clock.
Demand further testified that before March 24, 1974, a
driver by the name of Francis Foussey had refused without
explanation to go out on a run and Demand had fired him
on the spot . With regard to Kranias , Demand said that
Kranias explained the entire situation to him with regard
to his fiancee and Demand, after consulting with Kauf-
man, had acceded to Kranias ' request not , to go on long
runs . Demand further testified that the only drivers who
ever refused outright without explanation to go on a run
were Boucher and Foussey . When Foussey refused to take
the run he merely told Demand that he was going out with
some friends and therefore did not want , to take the night
run. Demand asked him, "You're refusing to go out you're
putting me on a spot . This is it, you're going to be fired."
GLASS GUARD INDUSTRIES , INC. 195
Foussey answered "Well, I guess I'll have to be fired." And
therefore Foussey was fired on the spot.
With regard to the conversation between Demand and
Boucher on the following day, Monday , March 25,
Boucher asked Demand about the dismissal notice and
Demand said , "That's it point blank just like that?" And
Demand answered "You never left me no choice . If there
was a personal reason that you could give me instead of
refusing the trip you know I would bend over backwards to
help you." Boucher then stated that there had been a
personal reason . Demand then asked Boucher why he did
not tell him the day before over the phone ; that Demand
would have done the best he could to help him out. With
that Boucher , who was upset at the moment , left. Demand
further explained, on cross-examination , that he, himself,
was unhappy with the layoff because he had lost some
good drivers and Boucher, himself, was a good driver.
Although it is quite true that Demand appeared
voluntarily or must have had good reason to travel from
Nova Scotia , Canada, to Worcester, Massachusetts, to
appear at the hearing on behalf of the Respondent, I also
note that he stated that he had no intention of returning to
the Respondent's employ, that moving his family was both
cumbersome and expensive , and that, accordingly, he had
no desire whatsoever to come back to the Respondent's
employ . Additionally, I was very much impressed with the
apparent sincerity of Demand in the manner in which he
testified . Moreover I conclude that Demand's testimony
with regard to the telephone conversation of March 24
during which Boucher refused to take the assigned run is
quite believable . Demand had, in the past, evidently gone
out of his way to accommodate Boucher . This is demon-
strated by the fact that, when Boucher wished to come off
the road and be at home, Demand made Boucher a
foreman . The Demand version of the conversation also can
reasonably be an accommodation to the apparent upset of
Boucher who was the chief organizer for the Charging
Teamsters Local and who felt at the time that the layoff
was unfair . Thus , his reaction could reasonably have been
expected to be that to which Demand testified . Moreover,
Demand's reaction to Boucher's reaction was quite normal.
He had gone out of his way in the past to help Boucher and
was understandably furious with Boucher's behavior , when
Boucher stated that he, Boucher, refused to take the run
and wanted to be laid off. Under any other circumstances,
I probably would find that Demand's version was
incredible and that it would be very unusual for an
individual with family responsibilities to ask to be laid off.
However, in the context of the conversation as set forth
above, I find Demand's version credible.
I have taken into consideration the fact that Boucher was
the leader of the Teamsters movement among the Respon-
dent's drivers . Accordingly, in a situation where the
Respondent , through the head of the traffic department in
which Boucher worked, displayed an apparent antipathy
toward the Union , the suspicion that Boucher was
discharged for his union activity and sympathy would be
very great. However, as heretofore set forth, under the
peculiar circumstances of the conversation of Sunday,
March 24 , and in view of the relationship that had existed
between Demand and Boucher, I find that Demand did
discharge Boucher in a fit of pique which was demonstrat-
ed by the fact that Demand admitted that he slammed
down the telephone during the conversation with Boucher.
Anger is one thing , union animus another . Although the
matter under all of, the circumstances is not without some
doubt, I find and conclude that Demand discharged
Boucher because he felt that Boucher had let him down
with regard to work performance after Demand had in
other circumstances promoted Boucher and had extended
to the latter special privileges and special treatment.
Accordingly , I fmd that Boucher was discharged for cause
and, if not for a good reason , at least not for a
discriminatory reason.
H. The Refusals to Rehire or Reinstate
The complaint alleges that all of the individuals named
above who were either discharged or laid off have been
refused reinstatement because they joined or assisted the
Glass Workers or the Teamsters or engaged in other
concerted activities.
With regard to George Desaulnier , I have heretofore
found that he was discharged for cause and that,
accordingly, the Respondent is under no obligation to
rehire or reinstate him. With regard to Robert Skaza,
Rafael Rojas , and Ralph Santiago, I have heretofore found
that they too were discharged for cause . I have further
discredited Rojas' alleged conversation with Supervisor
Dumaine with regard to Dumaine 's alleged conditional
offer to Rojas for reinstatement and his alleged statement
to Rojas to the effect that he would not rehire Skaza or
Santiago because of their union activity . Having credited
Dumaine and having discredited Rojas , I find and
conclude that the Respondent having discharged Skaza,
Rojas, and Santiago for cause and having found that Rojas
was not refused rehire because of any antiunion reasons
and that Skaza and Santiago were not refused -rehire for the
same reasons , I find and conclude that the Respondent is
not obligated under Board precedent or under the facts
above found to rehire or reinstate any of these three
individuals.
I. The Independent Violations of Section 8(a)(1) of
the Act
With regard to the complaint allegation that early in
January 1974 Robert Dumaine told employees that they
would never see a union in the plant , I have heretofore
discredited employee Skaza with regard to that conversa-
tion and therefore find that in this respect there was no
violation of the Act.
Although I have discredited Desaulnier with regard to
alleged 8(a)(1) violations of discharge for concerted
activity, I do find and conclude that on or about January
19, 1974, Neil Allman did tell employees that if they
persisted in their protected activities they would be fired.
This, I fmd and conclude, is a threat to discharge
employees for engaging in protected or concerted activities
and, therefore, violative of Section 8(a)(1) of the Act in that
it interfered with the employees ' Section 7 rights. Although
I have discredited Desaulnier in other matters and have
credited Supervisor Dumaine , I find that on or about
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 9, 1974, Dumaine in a conversation with
Desaulnier told the latter that if the employees persisted in
organizing for the Glass Workers and striking in order to
get what they wanted by way of benefits and safety
regulations, they would all be fired. This of course, is a
threat of discharge for engaging in protected concerted or
union activity, a clear violation of Section 8(a)(1) of the
Act. I so fmd.
I have heretofore related that, on the morning of January
9, Desaulnier and Sparks were talking over whether they
should go to the Labor Board and the Federal Safety
Commission OSHA to present the entire matter. At this
point Neil Allman called them over to the 200 line
furnance and asked if they were still upset and told them to
calm down because he had gotten word that if they were to
continue to make trouble and talk about the Union they
were definitely going to be fired. Allman further stated that
he had word from management that he could fire the
people who were talking for any reason that he wanted to.
At that point Desaulnier told Allman to just go ahead and
try because Desaulnier had done absolutely nothing to the
Respondent to give it any reason or excuse to have him
fired and that he, Desaulnier, had been doing his work.
Allman then stated that Butch Laine had earlier said that
this was a capitalistic government, that Glass Guard was a
strong Company, that the employees did not stand a
prayer, and that the Union would not stand behind them.
He further informed Desaulnier that the latter would fmd
himself without a job. He told Desaulnier and Sparks that
if they were going to go ahead and call the Labor Board
the way they said they were going to that they were going
to be fired. Allman further stated that Parkinson was "a
real nervous guy" and was very upset that morning and
just to let things calm down. He further promised that he
would have the situation straightened out that day.
In view of the fact that Allman did not testify, I conclude
that the conversation did occur and that, in fact, in that
conversation Allman in several instances threatened either
on his own or by quoting superior authority that, if the
employees, and especially Desaulnier and Sparks, persisted
in their attempts to organize or to call a strike, they would
be discharged. This is a classic case of interference with
employees' Section 7 rights and, accordingly, I fmd such
statements and threats to be violative of Section 8(a)(1) of
the Act.
Because I have generally discredited the testimony of
both Skaza and Rojas, I find and conclude that with
certain exceptions, the alleged independent 8(a)(1) allega-
tions of the complaint to which these individuals testified
did not occur and I therefore do not find any violation with
regard thereto.
With regard to matters testified to by employee Davis, I
have heretofore completely credited Davis and have not
credited either Robert Kaufman or William Morin.
Accordingly I fmd that on March 12, 1974, at the plant,
Robert Kaufman told Davis that if the Teamsters got in
the Respondent would close its doors to Local 170 or Local
25. While I have heretofore stated that I can sympathize
with and understand the resentment of Kaufman to the
bigoted remark of Local 170' s Business Agent Nunziello, I
nevertheless fmd that Kaufman's remark to the effect that
he would not countenance Local 170 or Local 25 coming
into the plant constituted a violation of Section 7 rights
and therefore a violation of Section 8(axl) of the Act. I
further find that on or about the same date on March 12,
1974, in the plant, William Morin told Davis that if the
Teamsters got in the Respondent would close its doors.
Such a threat constitutes a threat to the Section 7 rights of
employees and, accordingly, I find that this constituted a
violation of Section 8(a)(1) of the Act.
Additionally, I find that during the week preceding the
layoff of March 22, David Parkinson, personnel director of
the Respondent interrogated employee Alan Beique with
regard to the latter's feelings with regard to the Union,
referring to Local 170, the Charging Teamsters Union
herein. Such interrogation is, of course, a violation by
interference. with employees' Section 7 rights and thereby
constitutes a violation of Section 8(a)(1) of the Act.
I further find and conclude that in his conversation with
employee Lawson prior to Lawson's layoff, Francis
Demand, then a supervisor of the Respondent, on or about
March 11, 1974, at the plant, told Lawson that union
activity could result in trouble and that the Respondent
could find a reason to fire Lawson or any other employee
who engaged in such activity. This, again, is a classic threat
to discharge employees who engage in union or protected
concerted activities and is, accordingly, violative of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE,
The activities of the Respondent set forth in Section III,
above, occurring in connection with the operations of the
Respondent described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and ° tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, as set forth below, designed to
effectuate the policies of the Act.
It having been found that Respondent by threats of
discharge of employees for engaging in protected or
concerted activity and by unlawful interrogation of such
employees with regard to their union activities and
sympathies, has restrained and coerced employees in
violation of Section 8(a)(1) of the Act, I shall recommend
that the Respondent cease and desist therefrom.
Having found that the Respondent discriminatorily
discharged or selected for layoff employees Freeman
Davis, Alan Beique, Patrick Birch, and Gerald Schofield, I
shall recommend that Respondent offer to each immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges. In addition, I shall recommend
that the Respondent make each whole for any loss he may
have suffered by reason of the discrimination against him
GLASS GUARD INDUSTRIES, INC.
by payment to him of a sum of money equal to that which
he normally would have earned from the date of discharge
or discriminatory layoff, less net earnings during said
period. Backpay shall be computed with interest on a
quarterly basis in the manner described by the Board in F.
W. Woolworth Company, 90 NLRB 289, 281-295 (1950);
with interest thereon at 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
I note that during the hearing there was some evidence
that some of these employees have been reinstated and
have either refused the offer of reinstatement or have been
reinstated to jobs not equivalent to the jobs from which
they were discharged or discriminatorily laid off. I
nevertheless have made the foregoing recommendation on
the assumption that, if the employees have been reinstated
to their former equivalent position, the backpay due them
for the period during which they were laid off shall be
computed on the basis heretofore set forth.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. United Glass & Ceramic Workers of America, AFL-
CIO-CLC, and Truck Drivers No. 170, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By interrogating employees with regard to their
union activities and sympathies and by threatening
employees with discharge for engaging in protected
concerted or union activity, the Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed said employees in Section 7 of the
Act and thereby Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminatorily discharging or laying off its
employees named above, the Respondent has violated and
is violating Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in other activities
alleged in the complaint as violative of Section 8(a)(3) and
(1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER22
197
Respondent, Glass Guard Industries, Inc., a Division of
Guardian Industries, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies and activities, threatening employees
with discharge for engaging in union or protected concert-
ed activities, and informing employees it will not permit a
union to come into its plant in the event employees choose
such union as their bargaining representative.
(b) Discouraging membership in United Glass &
Ceramic Workers of America, AFL-CIO-CLC, and/or
Truck Drivers Local No. 170, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
discharging or laying off any employee for engaging in
union or other protected concerted activity or discriminat-
ing against employees in any other manner in regard to
their hire and tenure of employment or any term or
condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
form, join , assist or be represented by United Glass &
Ceramic Workers of America, AFL-CIO-CLC, and/or
Truck Drivers Local No. 170, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activity for the
purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any or all such activity except
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized under Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Freeman Davis, Alan Beique, Patrick Birch,
and Gerald Schofield, immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make each whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Webster, Massachusetts, copies
of the attached notice marked "Appendix." 23 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act not
found herein.